LF, LLC v. Omar farouk
Claim Number: FA2303002033981
Complainant is LF, LLC (“Complainant”), represented by Steven M. Levy of FairWinds Partners LLC, USA. Respondent is Omar farouk (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lowesdeal.com>, registered with Hostinger, UAB.
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 March 1, 2023; Forum received payment on March 1, 2023.
On March 2, 2023, Hostinger, UAB confirmed by e-mail to Forum that the <lowesdeal.com> domain name is registered with Hostinger, UAB and that Respondent is the current registrant of the name. Hostinger, UAB has verified that Respondent is bound by the Hostinger, UAB 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 March 2, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 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@lowesdeal.com. Also on March 2, 2023, 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. Respondent did however send emails to the Forum, see below.
On March 23, 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, in 1946, it commenced using the LOWE’S mark in connection with the advertising, marketing and operation of retail home improvement supply stores. It sells products and services related to home improvement including various hand and power tools. 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. On occasion Complainant engages in promotions by offering product or service discounts in the form of coupons or coupon codes (for use in online purchases); unfortunately, this process has sometimes been abused and there are a number of false Lowe’s coupons offered online – often for sale by unauthorized and unscrupulous persons. Complainant has rights in the LOWE’S mark through its registration in the United States in 2002.
Complainant alleges that the disputed domain name is identical or confusingly similar to its LOWE’S mark as it incorporates the mark in its entirety (omitting the apostrophe) and merely adds the generic/descriptive term “deal” 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 since Respondent is not commonly known by the disputed domain name and has not been licensed or authorized to use Complainant’s mark. Respondent does not use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the resolving website offers highly suspect coupon codes for both Complainant and its main competitor. The activities carried out at the resolving website do not satisfy the test for distributors nor for nominative fair use: Respondent is claiming to offer coupons of Complainant’s competitor; the disclaimer which appears at the bottom of its website does not cure the confusion that this causes. Respondent impersonates and falsely associates itself with Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attracts users for commercial gain by purporting to offer Complainant’s and a competitor’s coupons. Respondent had actual knowledge of Complainant’s rights in the LOWE’S mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its emails to the Forum, Respondent states, in pertinent part: “We have deleted the site already because of the complaints & we are ready to give up the domain.”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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 the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <lowesdeal.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 23, 2023
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