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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

LF, LLC v. Domain Admin, Whois Privacy Corp.

Case No. D2017-0726

1. The Parties

The Complainant is LF, LLC of Mount Morne, North Carolina, United States of America ("United States"), represented by CSC Digital Brand Services AB, Sweden.

The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, New Providence, the Bahamas.

2. The Domain Name and Registrar

The disputed domain name <lowws.com> is registered with Internet Domain Service BS Corp (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 11, 2017. On April 11, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 13, 2017, 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. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on April 25, 2017.

The Center verified that the Complaint together with the amended 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 1, 2017. In accordance with the Rules, paragraph 5, the due date for Response was May 21, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 23, 2017.

The Center appointed Nayiri Boghossian as the sole panelist in this matter on June 2, 2017. 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 owns a number of trademark registrations for the trademark LOWE'S and has produced certificates of registration in the United States and Canada, for example, Canadian Trademark Reg. No. TMA476914, registered on May 28, 1997; United States Trademark Reg. No. 3034244, registered on December 27, 2005. The Complainant has registered a number of domain names which include the trademark LOWE'S.

The Complainant operates in the field of home improvement as a retailer since 1946. The disputed domain name was registered on June 17, 2003. The disputed domain name resolves to a website displaying sponsored links to the Complainant and also competitors of the Complainant.

5. Parties' Contentions

A. Complainant

The Complainant contends that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights. The Complainant is the registered owner of the trademark and service mark LOWE'S. In the disputed domain name, the letter "e" is replaced with "w". The apostrophe is removed, which does not help in distinguishing a trademark. This misspelling renders the disputed domain name confusingly similar to the Complainant's trademark.

The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not affiliated to the Complainant nor was given authorization to use its trademark. The Respondent is not commonly known by the disputed domain name. There is no bona fide offering of goods or services nor a legitimate noncommercial or fair use. It appears that the Respondent is using the disputed domain name to direct Internet users to other websites which offer appliances and compete with the Complainant. These seem to be pay-per-click links. Furthermore, the Respondent is using the disputed domain name to resolve to a website that spreads malware and viruses. The disputed domain name was offered for sale for an amount that exceeds the out-of-pocket expenses of the Respondent. The disputed domain name was registered in 2003, significantly after the first use of the trademark LOWE'S by the Complainant and after the trademark LOWE'S has been registered by the Complainant.

The disputed domain name has been registered and is being used in bad faith. The Respondent did not reply to the Complainant's cease-and-desist letters. The disputed domain name was registered in 2003 significantly after the first use of the trademark LOWE'S by the Complainant in 1946 and after the trademark has been registered by the Complainant. The Respondent knew or should have known of the Complainant's trademark and this is evidenced by the fact that the Respondent made a one letter typo especially that the Complainant is known in its field. Typosquatting is evidence of bad faith registration and use as decided by previous UDRP decisions. The Respondent is using the disputed domain name to resolve to a website that uses an ad service which presumably generates revenue to the Respondent. The Respondent is attracting Internet users by creating confusion with the trademark of the Complainant. Furthermore, the Respondent is using the disputed domain name to resolve to a website that spreads malware and viruses. The Respondent's conduct disrupts the business of the Complainant as it directs visitors of its website to competitors of the Complainant. The Respondent has previously offered the disputed domain name for sale for profit and did not respond to the cease-and-desist letters of the Complainant.

B. Respondent

The Respondent did not reply to the Complainant's contentions.

6. Discussion and Findings

A. Identical or Confusingly Similar

The Complainant has submitted a number of trademark registration certificates for the trademark LOWE'S as well as a list of its trademark registrations. The Panel is satisfied that the Complainant has established its ownership of the trademark LOWE'S.

In the disputed domain name, the letter "e" of the trademark LOWE'S is replaced with the letter "w" forming the word "lowws" that is phonetically identical to the Complainant's trademark and is visually confusingly similar to it. This conduct constitutes typosquatting, which results in creating a domain name that is confusingly similar to a complainant's trademark as held by prior UDRP decisions (Edmunds.com, Inc v. Triple E Holdings Limited, WIPO Case No. D2006-1095).

Consequently, the Panel finds that the disputed domain name is confusingly similar to the trademark of the Complainant and that the Complainant has satisfied paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

The Complainant has made a prima facie showing that the Respondent does not have any rights or legitimate interests in the disputed domain name, particularly by asserting that it never authorized the Respondent to use its trademark.

The Respondent has not provided evidence of circumstances of the types specified in paragraph 4(c) of the Policy, or of any other circumstances, giving rise to rights or legitimate interests in the disputed domain name.

Consequently, the Panel finds that the Complainant has met the requirement under the Policy of showing that the Respondent does not have any rights or legitimate interests in the disputed domain name. Accordingly, the Complainant has satisfied paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

Typosquatting itself is evidence of bad faith as held by prior UDRP decisions (ESPN, Inc. v. XC2, WIPO Case No. D2005-0444). Furthermore, it is evident to the Panel that the Respondent was aware of the Complainant and its trademark as the disputed domain name resolves to a website that provides links to other websites some of which offer home appliances and home improvement products. A further evidence of the bad faith of the Respondent is its offer to sell the disputed domain name.

Such conduct falls squarely within the meaning of paragraph 4(b)(iv) of the Policy, and accordingly, the Panel finds that the Complainant has satisfied paragraph 4(a)(iii) of the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <lowws.com>, be transferred to the Complainant.

Nayiri Boghossian
Sole Panelist
Date: June 5, 2017

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