WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Linens ‘n Things, Inc. & Bloomington, MN., L.T., Inc. v. P4
Case No. D2002-0668
1. The Parties
The Complainant in this administrative proceeding is Linens ‘n Things, Inc., "Linens ‘n Things," a Delaware corporation, having its principal place of business in Clifton, New Jersey, United States. The Complaint is also brought in the name of Bloomington, MN., L.T., Inc. ("Bloomington"), a Minnesota corporation and a wholly owned subsidiary of Linens ‘n Things, having its principal place of business in Rye, New York.
The Respondent is P4, located at 4444 Lafayette Espl., Fort Wayne, Indiana, 46806. Contact information for P4 is Anthony Peppler at telephone 219-456-5399. An email address of email@example.com is also provided.
2. The Domain Name and Registrar
The domain name in dispute is <linennthings.com> (the Domain Name). The registrar with which the domain name is registered is TUCOWS.Com, Inc., 96 Mowat Ave., Toronto, Ontario, M6K 3M1, Canada (the Registrar).
3. Procedural History
The WIPO Arbitration and Mediation Center ("the Center") received the Complainant’s Complaint by e-mail on July 18, 2002, and in hardcopy on July 22, 2002. On July 18, 2002, the Center sent the Complainant an Acknowledgement of Receipt.
Also on July 18, 2002, the Center sent to the Registrar a Request for Registrar Verification. On that same day, the Registrar transmitted to the Center a Registrar Verification Response confirming that the Domain Name was indeed registered with the company, that the Respondent is the current registrant of the Domain Name, and that the status of the Domain Name is "locked." Registrar’s Response provided the following contact information for the Respondent:
4444 Lafayette Espl.
Fort Wayne, IN 46806
Administrative and Technical Contact:
Peppler, Anthony Anthony@peppler.net
4444 Lafayette Espl.
Fort Wayne, IN 46806
The Center completed a Formalities Compliance Review on August 21, 2002, and verified that the Complaint satisfied the formal requirements of the ICANN Uniform Domain Name Dispute Resolution Policy ("the Policy"), the Rules for Uniform Domain Dispute Resolution Policy (the Uniform Rules), and the Supplemental Rules for Uniform Domain Dispute Resolution Policy ("the WIPO Supplemental Rules"). However, in completing this review, the Center noted that Complainant had not made the required payment to the Center.
In responding to the notice of deficiency on July 5, 2002, Counsel for Complainant indicated that Respondent had agreed to transfer the Domain Name and asked that the transfer/hold restrictions be lifted. Because Complainant had already engaged the Center and required the expenditure of its resources, the Center informed Complainant that a processing fee of $500 was required before the case could be withdrawn. Complainant then inquired whether it could merely "suspend" the proceeding instead of withdrawing it. Complainant was informed the entire required fee of $1,500 had to be filed, and the case made non-deficient, before a suspension could be granted.
After payment was finally received on July 30, 2002, a request for a fourteen day suspension was received and granted on August 2, 2002. The Center confirmed that it would not proceed with the case until August 19, 2002. The Registrar was also notified.
On August 19, 2002, Respondent sent an e-mail to Complainant, the Center and the Registrar indicating that he was unable to voluntarily transfer the domain name to Complainant. It appears that Complainant was also unable, for technical reasons, to effectuate the voluntary transfer. The evidence indicates that the Registrar did not release the lock on the Domain Name during the suspension.
Paul Karkas, a Compliance Officer from the Registrar, indicated on August 22, 2002, that the official position of the Registrar was that it would not release the lock during a suspension, even after direct discussions with the Center. Facing the suspension deadline, Complainant meanwhile informed the Center that the Complaint should proceed.
With the deficiency cured, the Center found that the Complaint satisfied the formal requirements of the Policy, the Uniform Rules and the Supplemental Rules. Upon independent review, the Panel also finds that the Complaint satisfies the formal requirements of the Policy, the Uniform Rules and the WIPO Supplemental Rules.
On August 30, 2002, the Center transmitted to the parties, with copies to the Registrar and ICANN, a Notification of Complaint and Commencement of Administrative Proceeding, setting a deadline of September 19, 2002, by which Respondent could file a Response to the Complaint.
No response having been received, the Center sent a Notification of Respondent Default to Respondent on September 20, 2002.
The Center invited Andrew S. Mansfield to serve as the Panelist. On September 25, 2002, after receiving Mr. Mansfield’s Statement of Acceptance and Declaration of Impartiality and Independence, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date (October 9, 2002). The Panel finds that the Administrative Panel was properly constituted and appointed in accordance with the Uniform Rules and the WIPO Supplemental Rules.
The language of this proceeding is English.
4. Factual Background
Complainant is one of the leading retailers of home textiles, housewares and home accessories operating in 43 states and four provinces across the U.S. and Canada. It has used LINENS ‘N THINGS as a trademark since 1970. It has used that mark in the form of <linensnthings.com> as its Internet domain name since 1997.
Complainant Bloomington is a wholly owned subsidiary of Linens ‘n Things. It possesses U.S. Registration No. 934,171 for LINENS ‘N THINGS and that mark has obtained incontestable status. Complainant is formally a licensee of the mark.
The Domain Name differs from Complainant’s main commercial website only by the absence of the letter "s." It is likely that a certain number of individuals seeking Complainant’s website may mistype the URL and end up at the Domain Name.
Respondent operates a commercial website at the Domain Name that presents the user with a directory of goods and services, a search engine and at least three pop-up advertisements. Within this broad offering, users are offered housewares.
5. Parties’ Contentions
Complainant alleges that Respondent is engaged in a form of cyber-squatting known as "typo-squatting." WIPO Panels have recognized such cybersquatting. See, e.g., Estee Lauder, Inc. v. estelauder.com, estelauder.net and Jeff Hanna, D2000-0869 (WIPO September 25, 2000).
Respondent filed no Response. The Panel takes into consideration the fact that Respondent offered to voluntarily transfer the Domain Name for no consideration.
6. Discussion and Findings
Complainant must prove three distinct elements in order to prevail on its claim for transfer of the Domain Name. These elements are set forth in Paragraph 4(a) of the Policy:
- The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the Domain Name; and
- The Domain Name was registered and is being used in bad faith.
(a) Identity or Confusing Similarity of Domain Name and Trademark
The evidence shows that the Domain Name is practically identical to Complainant’s mark, differing only in the deletion of one character. The Domain Name is confusingly similar to Complainant’s mark.
(b) No Legitimate Interest in the Domain Name
By failing to submit a Response, Respondent provides no evidence that it has any rights whatsoever in the Domain Name. The Panel, as required, has conducted an independent review of the website deployed at the Domain Name and finds that Respondent has no apparent rights or legitimate interest in the mark LINENS ‘N THINGS.
(c) Bad Faith Registration and Use of the Domain Name
Paragraph 4(b) of the Policy sets forth four examples of bad faith, which are not exclusive, but which "shall be evidence of registration and use of a domain name in bad faith." Those designated may be summarized as:
- Evidence that the purpose of registration is to sell, rent or transfer the domain name to the Complainant for an amount in excess of out-of-pocket expenses; or
- Evidence that the registration of the domain name was to prevent the owner of the trademark or the service mark from using the domain name, coupled with a pattern of such conduct; or
- Evidence that registration and/or use is primarily meant to disrupt the business of a competitor; or
- Intentional utilization, for commercial purposes, of the likelihood of confusion stemming from the domain name’s use or deployment.
This case presents a clear example of the last element. So called "typo-squatting" relies, for its commercial effectiveness, on the confusion created by the similarity between a domain name and a trademark. Respondent is apparently earning some income from the deployment of the current website at the Domain Name through advertising and perhaps through directing individuals to the search engine displayed.
For all of the foregoing reasons, it is the decision of the Panel that the Complainant has proved the essential elements of a claim. The Complainant’s claim for transfer of Domain Name is therefore granted.
Andrew S. Mansfield
Dated: October 8, 2002