LF, LLC v. Waseem Hassan
Claim Number: FA2212002025476
Complainant is LF, LLC (“Complainant”), represented by Steven M. Levy of FairWinds Partners LLC, USA. Respondent is Waseem Hassan (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <harborbreezeoutlet.com>, registered with Namecheap, Inc.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on December 27, 2022; Forum received payment on December 27, 2022.
On December 27, 2022, Namecheap, Inc. confirmed by e-mail to Forum that the <harborbreezeoutlet.com> domain name is registered with Namecheap, Inc. and that Respondent is the current registrant of the name. Namecheap, Inc. has verified that Respondent is bound by the Namecheap, Inc. 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 December 30, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 19, 2023 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@harborbreezeoutlet.com. Also on December 30, 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 January 25, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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
Complainant states that it is the intellectual property holding company for a famous international chain of retail home improvement stores named Lowe’s. Since 1990, Complainant’s parent company has offered a house-brand line of ceiling fans under the trademark HARBOR BREEZE. Complainant serves customers through more than 2,200 stores in the United States and Canada, had net sales of over USD 96 Billion for fiscal year 2021, and employs approximately 300,000 associates. Online, Complainant advertises and markets the HARBOR BREEZE products on its <www.lowes.com> website. Through this website, Complainant also provides information to current and prospective customers about the many different fan and lighting products it sells. As a result of Complainant’s long usage and promotion of the HARBOR BREEZE mark, it has become well-known amongst consumers. Complainant has rights in the HARBOR BREEZE mark through numerous international trademark registrations, including in the United States in 2002.
Complainant alleges that the disputed domain name is identical or confusingly similar to its HARBOR BREEZE mark as it incorporates the mark in its entirety and merely adds the descriptive term “outlet”, which relates to Complainant’s services, and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known as the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a website that impersonates Complainant by displaying the HARBOR BREEZE logo and many images of HARBOR BREEZE ceiling fans, as well as many monetized links to third-party websites where users appear to be able to purchase such products. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent has been found to have registered and used domain names in bad faith in at least three prior UDRP proceedings. Respondent uses the disputed domain name to attract users for commercial gain by hosting competing hyperlinks. Respondent had actual knowledge of Complainant’s rights in the HARBOR BREEZE mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark HARBOR BREEZE and uses it to market fans.
Complainant’s rights in its mark date back to 2002.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays Complainant’s mark and distinctive logo, pictures of Complainant’s products, and pay-per-click links to Complainant’s competitors. Respondent has engaged in a pattern of bad faith registration and use of domain names.
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 disputed domain name incorporates Complainant’s HARBOR BREEZE mark in its entirety and merely adds the descriptive term “outlet” and the “.com” generic top-level domain (“gTLD”). When a disputed domain name uses an entire mark, additional terms have been found insufficient to defeat a finding of confusing similarity. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark); see also Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”). Therefore, the Panel finds that the <harborbreezeoutlet.com> domain name is confusingly similar to Complainant’s HARBOR BREEZE mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Here, the WHOIS information for the disputed domain name lists the registrant as “Waseem Hassan”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to divert Internet traffic to a site that contains pay-per-click links to Complainant’s competitors. Previous panels have declined to find a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name when a respondent diverts traffic to a site that hosts competing hyperlinks. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use domain name under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website hosts hyperlinks to competing third-party sites. When a respondent uses a disputed domain name to display hyperlinks that direct Internet traffic to a complainant’s competitors, it may indicate bad faith under Policy ¶ 4(b)(iv). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iv)”); see also Maricopa Cmty. Coll. Dist. v. College.com, LLC, FA 536190 (Forum Sept. 22, 2005) (“The Panel infers that Respondent receives click-through fees for diverting Internet users to a competing website. Because Respondent’s domain name is identical to Complainant’s PHOENIX COLLEGE mark, Internet users accessing Respondent’s domain name may become confused as to Complainant’s affiliation with the resulting website. Thus, Respondent’s use of the <phoenixcollege.com> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”). Thus the Panel finds bad faith registration and use under Policy ¶ 4(b)(iv).
Further, Complainant provides evidence that Respondent has been found to have registered and used domain names in bad faith in at least three prior UDRP proceedings. When a respondent has been a participant in prior UDRP cases resulting in transfer of the disputed domain name, it may establish a pattern of bad faith registration and use, and therefore bad faith pursuant to Policy ¶ 4(b)(ii). See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(ii).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and distinctive logo, as well as images of Complainant’s products. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <harborbreezeoutlet.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: January 25, 2023
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