DECISION

 

Hobby Lobby Stores, Inc. v. Domain Administrator / Fundacion Privacy Services LTD

Claim Number: FA2411002125095

 

PARTIES

Complainant is Hobby Lobby Stores, Inc. ("Complainant"), represented by Hunter D. Westfahl of Hobby Lobby Stores, Inc., Oklahoma, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD ("Respondent"), Panama.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <hobbylobbby.com>, registered with Media Elite Holdings Limited.

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 14, 2024; Forum received payment on November 14, 2024.

 

On November 18, 2024, Media Elite Holdings Limited confirmed by e-mail to Forum that the <hobbylobbby.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 November 19, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 9, 2024 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@hobbylobbby.com. Also on November 19, 2024, 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 December 11, 2024 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends in part as follows:

 

Complainant is one of the largest retailers in the United States. Complainant sells its products via physical retail stores in 48 states and its website at <hobbylobby.com>. The Complainant is the owner of several trademarks registered with the United States Patent and Trademark Office, including the trademark "Hobby Lobby." This trademark was first used on August 3, 1972 and has been continuously active since that date.

 

Respondent's at-issue domain name is confusingly similar to a trademark in which Complainant has rights as the domain name contains Complainant identical HOBBY LOBBY trademark with an additional "b" placed in the word "lobby."

 

Respondent lacks rights and legitimate interests in respect of the at-issue domain name as the domain name was created after Complainant established exclusive rights in HOBBY LOBBY.

 

Respondent registered and used the at-issue domain name in bad faith. Because consumers associate Complainant's trademark with <hobbylobbby.com>, Respondent is attempting to attract, for commercial gain, Internet users to <hobbylobbby.com> by creating a likelihood that this website would be confused with Complainant's registered trademarks. Respondent registered <hobbylobbby.com> primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark for valuable consideration in excess of Respondent's documented out-of-pocket costs directly related to the domain name. UDRP Rule 3(b)(ix)(3). Respondent registered the domain <hobbylobbby.com>, which is identical to <hobbylobby.com>, except there is an additional "b" in "lobby" in the "hobbylobbby.com" domain. "Lobbby" is not a word. This shows that the only reason Respondent registered <hobbylobbby.com> was to sell the domain name registration to the Complainant.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the HOBBY LOBBY mark.

 

Respondent is not affiliated with Complainant and had not been authorized to use Complainant's trademark in any capacity.

 

Respondent registered the at‑issue domain name after Complainant acquired rights in the HOBBY LOBBY trademark.

 

Respondent holds the at-issue domain name in furtherance of its typosquating.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The at-issue domain name is confusingly similar to a mark in which Complainant has rights.

 

Complainant demonstrates rights in the HOBBY LOBBY mark through its registration of such mark with the USPTO. See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant's registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)).

 

Respondent's <hobbylobbby.com> domain name contains a recognizable misspelled version of Complainant's trademark with the mark's domain name impermissible space removed and an extra letter "b" has been inserted into the mark. The misspelled mark is followed by the ".com" top-level to complete the domain name. The differences between the <hobbylobbby.com> domain name and Complainant's HOBBY LOBBY trademark are insufficient to distinguish the domain name from Complainant's mark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent's <hobbylobbby.com> domain name is confusingly similar to HOBBY LOBBY. 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.").

 

Rights or Legitimate Interests

Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant's prima facie showing acts conclusively.

 

Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant's trademarks in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or legitimate interests in respect of the at-issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) ("lack of evidence in the record to indicate a respondent is authorized to use [the] complainant's mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)").

 

The WHOIS information for the at-issue domain name reveals its registrant as "Domain Administrator – Fundacion Privacy Services" and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by <hobbylobbby.com>. The Panel therefore concludes that Respondent is not commonly known by the <hobbylobbby.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).

 

As discussed further below regarding registration and use in bad faith, Respondent is engaged in typosquatting. Respondent's domain name is thus neither indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii).

 

Given the forgoing, Respondents lacks rights and lacks of legitimate interests in respect of <hobbylobbby.com>.

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, bad faith circumstances are present which lead the Panel to conclude that Respondent acted in bad faith pursuant to the Policy regarding the at-issue domain name.

 

First and as mentioned above, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark or other identifying mark such as a domain name and then registers the resulting string in a domain name. The registrant hopes that internet users will: 1) inadvertently type the malformed string when searching for content related to the domain name's target trademark and/or, 2) in viewing the domain name will confuse such domain name with its target mark. Here, Respondent's at-issue domain name is near identical to Complainant's genuine domain name as Respondent merely added an additional "b" into Complainant's mark in forming the domain name. There is some likelihood that a number of internet users will mistype Complainant's genuine domain name adding an extra "b" and then be inadvertently directed to Respondent's domain name and any associated website. Further, upon reading Respondent's <hobbylobbby.com> domain name in a search result or an email address, the domain name may nevertheless mistakenly pass for the address of Complainant's official website. The mistake may then be inappropriately exploited. Typosquatting is, in itself, indicative of bad faith. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).

 

Moreover, Respondent had actual knowledge of Complainant's rights in the HOBBY LOBBY mark when it registered <hobbylobbby.com> as a domain name. Respondent's prior knowledge of Complainant's HOBBY LOBBY trademark is evident from the mark's notoriety and long term use and from Respondent's overt typosquatting of said mark in forming the at-issue domain name. Respondent's registration and use of <hobbylobbby.com> with knowledge of Complainant's rights in HOBBY LOBBY further shows Respondent's bad faith pursuant to the Policy. See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); 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).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <hobbylobbby.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: December 11, 2024