WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
LF, LLC v. Giuseppe (Joseph) Sansone d/b/a lowesdisposal
Case No. D2011-1738
1. The Parties
The Complainant is LF, LLC of Mooresville, North Carolina, United States of America, represented by Stikeman Elliott, Canada.
The Respondent is Giuseppe (Joseph) Sansone d/b/a lowesdisposal of Maple, Ontario, Canada.
2. The Domain Name and Registrar
The disputed domain name <lowesdisposal.com> (the “Domain Name”) is registered with Tucows Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 13, 2011. On October 13, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 13, 2011, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 17, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 6, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 8, 2011.
The Center appointed Tony Willoughby as the sole panelist in this matter on November 15, 2011. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
The Complainant is a Delaware corporation engaged in the field of home improvement retailing through affiliate licensees and sub-licensees in the United States of America and Canada. It commenced business in 1946 with one Lowe’s retail store in North Carolina. There are now nearly 1800 Lowe’s stores operating throughout North America with over 200,000 employees and annual sales in 2010 of in excess of USD 45 billion. The first Canadian Lowe’s stores opened in the course of 2007 amidst a high degree of media attention.
The Complainant is the registered proprietor of a large portfolio of trade mark registrations around the world of or including the word mark LOWE’S. For the purposes of this proceeding involving a Canada-based respondent the Complainant relies upon its Canadian trade mark registration No. TMA476914 dated December 13, 1994 (registered May 28, 1997) LOWE’S (word) for a wide range of services relating to home improvement and home improvement retailing.
The Domain Name was registered on January 25, 2008. The evidence supplied by the Complainant connects the Respondent with the domain name, <lowesdisposal.ca>, a Canadian business name registration “Lowesdisposal.ca” dated May 26, 2008, and a Canadian corporation, Lowes Disposal Limited, incorporated on October 9, 2008, but subsequently dissolved (or in the process of dissolution) for non-compliance with corporate formalities.
On June 14, 2010, the Complainant’s representatives wrote to the Respondent at the address for him which appears on the Registrar’s database, drawing his attention to the Complainant’s rights and seeking transfer of the Domain Name. However, the Respondent had moved from that address and the letter was returned.
Two days later the Complainant’s representatives sent the letter by email and appears to have been received as there has been no indication of non-receipt. The Respondent has not replied. Further attempts by the Complainant to trace the Respondent have ended in failure.
The Respondent’s website connected to the Domain Name indicates that the Respondent is engaged in the business of waste disposal.
The website has featured a logo very similar in colour and design to the Complainant’s logo. The Complainant’s logo is the cross-section of a house coloured blue and outlined in red with the name “Lowe’s” in white upper case lettering being the central feature of the design. The Respondent’s logo is also the cross-section of a house coloured blue and outlined in red. The principal difference is that the name “Lowes”, while also the central feature of the design, is in black upper case lettering and features the word “Disposal” in much smaller upper case lettering also in black.
5. Parties’ Contentions
The Complainant contends that the Domain Name is confusingly similar to the Complainant’s LOWE’S registered trade mark and that the Respondent has no rights or legitimate interests in respect of the Domain Name and that the Respondent registered the Domain Name and is using the Domain Name in bad faith
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name: and
(iii) The Domain Name has been registered and is being used in bad faith.
B. Identical or Confusingly Similar
The Domain Name comprises the Complainant’s registered trade mark LOWE’S (absent the apostrophe), the word “disposal” and the generic “.com” domain suffix, which may be ignored for the purpose of assessing confusing similarity under paragraph 4(a)(i) of the Policy.
The Complainant is engaged in the field of home improvement and while the word “disposal” is not a word that immediately springs to mind in that context, it is not so out-of-place as to obscure the distinctiveness of “lowes”, the first part of the Domain Name.
The Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights.
C. Rights or Legitimate Interests
The Complainant has produced sufficient evidence to demonstrate that the launch of Lowe’s stores in Canada in 2007 was accompanied by substantial press coverage of the various openings. The unchallenged evidence of the Complainant is that the “brand” achieved substantial sales very quickly.
The Complainant’s researches have uncovered no reason why the Respondent might justifiably have adopted the name “Lowes Disposal” for the name of his business and for the Domain Name.
The Complainant contends that the Respondent was deliberately targeting the Complainant and its business with a view to riding on the back of the fame of the Complainant’s trade mark. The Complainant relies in support of this contention on (a) the timing, coming so soon after the launch of the Complainant’s business in Canada, (b) the absence of any obvious reason why the Respondent should have selected the name for his business, (c) the fact that the Respondent’s logo was so similar to the Complainant’s logo (see section 4 above) and (d) the Complainant has produced to the Panel press cuttings indicating that the Respondent was misrepresenting to customers that he was in some way associated with the Complainant.
The Complainant has made out a strong prima facie case, a case calling for an answer. However, there is no answer. The Respondent has not responded to the Complaint.
In the absence of any answer to the Complainant’s allegations and because the Panel cannot conceive of any reason why the Respondent might legitimately have adopted the name for either his business or the Domain Name, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
D. Registered and Used in Bad Faith
In the view of the Panel the evidence of the Complainant is sufficient, in the absence of any plausible explanation from the Respondent, to establish that the Respondent registered the Domain Name with the fame of the Complainant’s name and trade mark in mind and with a view to leading his customers to believe that his business was in some way associated with the Complainant.
The Panel finds that the Domain Name was registered and is being used in bad faith within the meaning of paragraphs 4(a)(iii) and 4(b)(iv) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <lowesdisposal.com> be transferred to the Complainant.
Dated: November 18, 2011