LF, LLC v. Above.com Domain Privacy
Claim Number: FA1009001348403
Complainant is LF, LLC (“Complainant”), represented by J. Mark Wilson, of Moore & Van Allen PLLC, North Carolina, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lowesblowes.com>, <lowescredtcenter.com>, <lowescreidit.com>, <lowescreidt.com>, <lowesdistrubutioncenter.com>, <lowesgreatideas.com>, <lowesharware.com>, <loweshomeimporvement.com>, <lowesmiami.com>, <lowesrental.com>, <lowesvisaplatinum.com>, <myloweslofe.com>, <myloweswealth.com>, <wwwlowes.net> and <wwwmyloweslife.com>, registered with ABOVE.COM PTY LTD.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 24, 2010.
On September 27, 2010 and October 19, 2010, ABOVE.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <lowesblowes.com>, <lowescredtcenter.com>, <lowescreidit.com>, <lowescreidt.com>, <lowesdistrubutioncenter.com>, <lowesgreatideas.com>, <lowesharware.com>, <loweshomeimporvement.com>, <lowesmiami.com>, <lowesrental.com>, <lowesvisaplatinum.com>, <myloweslofe.com>, <myloweswealth.com>, <wwwlowes.net> and <wwwmyloweslife.com> domain names are registered with ABOVE.COM PTY LTD. and that Respondent is the current registrant of the names. ABOVE.COM PTY LTD. has verified that Respondent is bound by the ABOVE.COM PTY LTD. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 20, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 9, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@lowesblowes.com, postmaster@lowescredtcenter.com, postmaster@lowescreidit.com, postmaster@lowescreidt.com, postmaster@lowesdistrubutioncenter.com, postmaster@lowesgreatideas.com, postmaster@lowesharware.com, postmaster@loweshomeimporvement.com, postmaster@lowesmiami.com, postmaster@lowesrental.com, postmaster@lowesvisaplatinum.com, postmaster@myloweslofe.com postmaster@myloweswealth.com, postmaster@wwwlowes.net, and postmaster@wwwmyloweslife.com by e-mail. Also on October 20, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 15, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <lowesblowes.com>, <lowescredtcenter.com>, <lowescreidit.com>, <lowescreidt.com>, <lowesdistrubutioncenter.com>, <lowesgreatideas.com>, <lowesharware.com>, <loweshomeimporvement.com>, <lowesmiami.com>, <lowesrental.com>, <lowesvisaplatinum.com>, <myloweslofe.com>, <myloweswealth.com>, <wwwlowes.net> and <wwwmyloweslife.com> domain names are confusingly similar to Complainant’s LOWES mark.
2. Respondent does not have any rights or legitimate interests in the <lowesblowes.com>, <lowescredtcenter.com>, <lowescreidit.com>, <lowescreidt.com>, <lowesdistrubutioncenter.com>, <lowesgreatideas.com>, <lowesharware.com>, <loweshomeimporvement.com>, <lowesmiami.com>, <lowesrental.com>, <lowesvisaplatinum.com>, <myloweslofe.com>, <myloweswealth.com>, <wwwlowes.net> or <wwwmyloweslife.com> domain names.
3. Respondent registered and used the <lowesblowes.com>, <lowescredtcenter.com>, <lowescreidit.com>, <lowescreidt.com>, <lowesdistrubutioncenter.com>, <lowesgreatideas.com>, <lowesharware.com>, <loweshomeimporvement.com>, <lowesmiami.com>, <lowesrental.com>, <lowesvisaplatinum.com>, <myloweslofe.com>, <myloweswealth.com>, <wwwlowes.net> and <wwwmyloweslife.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, LF, LLC, owns the exclusive rights to its LOWE’S mark which it uses in connection with its extensive home improvement retail business. Complainant operates stores throughout North America, and also operates the websites <lowes.com>, <loweshomeimprovement.com>, and <myloweslife.com>. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its LOWE’S mark (e.g., Reg. No. 1,168,799 issued September 8, 1981).
Respondent registered the disputed domain names no earlier than December 18, 2006. The disputed domain names resolve to websites that feature links to third-party sites, including Complainant’s official website and others in competition with Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
The Panel finds that Complainant has rights in its LOWE’S mark under Policy ¶ 4(a)(i) by virtue of its registration of the mark with the USPTO. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that the complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO). Previous panels have also concluded that it is irrelevant when determining a complainant’s rights in a mark whether the complainant registered the mark in the country in which the respondent operates. See KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
Respondent’s disputed domain names are confusingly similar to Complainant’s LOWE’S mark. Respondent’s <lowesblowes.com>, <lowescredtcenter.com>, <lowescreidit.com>, <lowescreidt.com>, <lowesdistrubutioncenter.com>, <lowesgreatideas.com>, <lowesrental.com>, <lowesvisaplatinum.com>, <myloweslofe.com>, <myloweswealth.com> all contain Complainant’s LOWE’S mark absent the apostrophe. These disputed domain names also append one or more generic terms, some of which have been misspelled, including; “blowes,” “credt,” “center,” “creidit,” “creidt,” “distrubution,” “great,” “ideas,” “rental,” “visa,” “platinum,” “my,” “lofe,” and “wealth.” The Panel finds that the removal of an apostrophe and the addition of a generic term or terms are not sufficient to properly distinguish the disputed domain names from Complainant’s mark. See LOreal USA Creative Inc v. Syncopate.com – Smart Names for Startups, FA 203944 (Nat. Arb. Forum Dec. 8, 2003) (finding that the omission of an apostrophe did not significantly distinguish the domain name from the mark); see also Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Disney Enters. Inc. v. McSherry, FA 154589 (Nat. Arb. Forum June 17, 2003) (finding the <disneyvacationvillas.com> domain name to be confusingly similar to Complainant’s DISNEY mark because it incorporated Complainant’s entire famous mark and merely added two terms to it).
Respondent’s <lowesharware.com> and <loweshomeimporvement.com> combine Complainant’s LOWE’S mark with the descriptive (and misspelled) terms “harware” (which presumably is a misspelled version of “hardware” and references products sold at Complainant’s retail stores) and “home imporvement” (which presumably is a misspelled version of “home improvement” and references Complainant’s general business). These disputed domain names also omit the apostrophe from Complainant’s mark. The Panel finds that these alterations do not eliminate the confusing similarity under Policy ¶ 4(a)(i). See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 16, 2007) (finding that the addition of the descriptive term “wine” to the complainant’s BLACKSTONE mark in the <blackstonewine.com> domain name was insufficient to distinguish the mark from the domain name under Policy ¶ 4(a)(i)); see also Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see also LOreal USA Creative Inc, supra.
Respondent’s <lowesmiami.com> domain name contains Complainant’s LOWE’S mark minus the apostrophe and adds the geographic term “miami.” The Panel finds that the removal of an apostrophe and a geographic term do not distinguish the domain name from Complainant’s LOWE’S mark. See LOreal USA Creative Inc, supra; see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the addition of geographic terms, such as “cancun” to the end of the CHEAPTICKETS mark in the <cheapticketscancun.com>, <cheapticketscancun.biz>, <cheapticketscancun.net>, and <cheapticketscancun.org> domain names, does not overcome a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Skype Ltd. & Gannett Co. v. Chan, D2004-0117 (WIPO Apr. 8, 2004) (“…it is well established that a domain name consisting of a well-known mark, combined with a geographically descriptive term or phrase, is confusingly similar to the mark.”).
Respondent’s <wwwlowes.net> and <wwwmyloweslife.com> domain names incorporate Complainant’s LOWE’S mark, add the prefix “www”, and remove the apostrophe. The <wwwmyloweslife.com> domain name also incorporates generic terms. The Panel finds that these alterations are not sufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i). See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s domain name <wwwbankofamerica.com> is confusingly similar to the complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”); see also Register.com Inc. v. House, FA 167970 (Nat. Arb. Forum Aug. 22, 2003) (finding the prefix “www” followed by the trademark with no period separating them did not distinguish the mark and was confusingly similar); see also LOreal USA Creative Inc, supra; see also Arthur Guinness Son & Co. (Dublin) Ltd., supra. All of Respondent’s disputed domain names also append a generic top-level domain (“gTLD”) such as “.net” or “.com.” The Panel finds that the addition of a gTLD is irrelevant to Policy ¶ 4(a)(i) analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.”). Therefore, the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s LOWE’S mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) is satisfied.
Complainant alleges that Respondent does not have any rights or legitimate interests in the disputed domain names. The burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii) when the Complainant makes a prima facie case in support of its allegations. The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”); see also Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”).
Complainant asserts that it has not authorized Respondent to use Complainant’s LOWE’S mark. The WHOIS information does not indicate that Respondent is commonly known by the disputed domain names. With no evidence in the record to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant argues that Respondent’s disputed domain names resolve to websites featuring links to Complainant’s own official website as well as other third-party websites, some of which offer products or services that compete with those offered by Complainant through its retail stores. Complainant presumes that Respondent receives commercial benefits, monetary or otherwise, for redirecting Internet users to these third-party sites. The Panel finds that Respondent’s use of the disputed domain names to display commercial link pages is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites).
Complainant alleges that Respondent offered to sell the disputed domain names to Complainant for $500 each. There is no showing that $500 represents the out-of-pocket costs associated with the registration of each of these domain names. The Panel finds that Respondent’s offer to sell the disputed domain names for an amount in excess of Respondent’s out-of-pocket costs is further evidence that Respondent lacks rights or legitimate interests in the disputed domain names. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); see also Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)).
The Panel finds that Policy ¶ 4(a)(ii) is satisfied.
Complainant provides evidence of Respondent’s offer to sell the disputed domain names to Complainant for $500 each. The Panel finds that Respondent’s offer to sell the disputed domain names is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); see also Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale).
Respondent registered and is using the disputed domain names to divert Internet users seeking Complainant to Respondent’s website featuring links to Complainant’s competitors and other third-party businesses. The Panel finds that this constitutes a disruption of Complainant’s business and bad faith. See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Respondent’s registration and use of the disputed domain names, all confusingly similar to Complainant’s LOWE’S mark, is creating a likelihood of confusion as to Complainant’s association with the disputed domain names and resolving websites for Respondent’s own commercial gain. Therefore, the Panel finds Respondent has demonstrated bad faith pursuant to Policy ¶ 4(b)(iv). See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
The Panel finds that Policy ¶ 4(a)(iii) is satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lowesblowes.com>, <lowescredtcenter.com>, <lowescreidit.com>, <lowescreidt.com>, <lowesdistrubutioncenter.com>, <lowesgreatideas.com>, <lowesharware.com>, <loweshomeimporvement.com>, <lowesmiami.com>, <lowesrental.com>, <lowesvisaplatinum.com>, <myloweslofe.com>, <myloweswealth.com>, <wwwlowes.net> and <wwwmyloweslife.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 29, 2010
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