La-Z-Boy Incorporated v. sm abu raihan arman / Intelliapps
Claim Number: FA2208002010549
Complainant is La-Z-Boy Incorporated (“Complainant”), represented by Jessica S. Sachs of Harness, Dickey & Pierce, PLC, Michigan, USA. Respondent is sm abu raihan arman / Intelliapps (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lazyboys.xyz>, (‘the Domain Name’) registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to Forum electronically on August 31, 2022; Forum received payment on September 1, 2022.
On September 2, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to Forum that the <lazyboys.xyz> Domain Name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On September 2, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 22, 2022 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@lazyboys.xyz. Also on September 2, 2022, the Written Notice of the Complaint, notifying Respondent of the e-mail 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, Forum transmitted to the parties a Notification of Respondent Default.
On September 30, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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 Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, 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 Name be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant owns the trade mark LA-Z-BOY registered, inter alia, in the USA for furniture with first use recorded as 1929.
The Domain Name registered in 2022 is confusingly similar to the Complainant’s mark adding a letter ‘y’ and a letter ‘s’, and the gTLD “.xyz” none of which is enough to distinguish the Domain Name from the Complainant’s mark.
Respondent is not commonly known by the Domain Name and has not been authorised by the Complainant to use the Complainant’s mark. The Domain Name has been used to point to competing commercial pay per click links which is not a bona fide offering of goods or services or a non commercial legitimate and fair use.
Respondent has used a confusingly similar domain name in opportunistic bad faith to resolve to pay per click links intentionally attempting to attract Internet users to the Respondent’s web site by creating a likelihood of confusion as to the source or affiliation of the web site and services on that web site and causing disruption to the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the trade mark LA-Z-BOY registered, inter alia, in the USA for furniture with first use recorded as 1929.
The Domain Name registered in 2022 has been used for competing pay per click links.
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."
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.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name consists of a misspelling of the Complainant's LA-Z-BOY mark and the gTLD “.xyz”.
The Panel agrees that visually similar misspellings of a complainant’s mark in a domain name do not prevent confusing similarity between that domain name and the complainant's trade mark pursuant to the Policy. See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, “Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”). As such adding a letter ‘y’ and a letter ‘s’ does not prevent the Domain Name being confusingly similar to the Complainant’s trade mark under the Policy. Not does the omission of dashes. See Mrs. World Pageants, Inc. v. Crown Promotions, FA 94321 (Forum Apr. 24, 2000) (finding that punctuation is not significant in determining the similarity of a domain name and mark)
The gTLD “.xyz” does not serve to distinguish a domain name from a complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).The use of the Domain Name is commercial and so cannot be legitimate non commercial fair use
The web site attached to the Domain Name points to commercial competing pay per click links. It does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Vance Int’l Inc. v. Abend, FA 0970871 (Forum June 8, 2007) (Concluding that the operation of a pay per click web site at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate non commercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially benefitting from the click through fees.)
The Domain Name appears to be a typosquatting registration targeting those who may misspell the Complainant’s mark. Typosquatting is also an indication of a lack of rights or a legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”).
The Respondent has not answered this Complaint or offered any explanation.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
Further, in the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as it uses the Complainant’s mark for commercial competing pay per click links.
Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or products or services offered on it likely to disrupt the business of the Complainant. See Univ of Houston Sys v. Salvia Corp., FA 637920 (Forum Mar. 21, 2006).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lazyboys.xyz> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: September 30, 2022
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