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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Lennar Pacific Properties Management, Inc., and Lennar Corporation v. fengyun

Case No. D2021-1128

1. The Parties

The Complainants are Lennar Pacific Properties Management, Inc., and Lennar Corporation (collectively “the Complainant”), United States of America (“United States”), represented by Slates Harwell LLP, United States.

The Respondent is fengyun, China.

2. The Domain Name and Registrar

The disputed domain name <lnnar.com> (the “Domain Name”) is registered with Alibaba.com Singapore E‑Commerce Private Limited (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 13, 2021. On April 13, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 15, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on April 20, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on April 20, 2021.

The Center verified that the Complaint, together with the amendment to 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 5, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 25, 2021. The Respondent did not file a formal Response but sent several emails in Chinese on April 20 and 22, 2021, and May 5, 2021. On June 8, 2021, the Center informed the Parties that it would proceed to appoint a panel.

The Center appointed Karen Fong as the sole panelist in this matter on June 18, 2021. 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 one of the leading homebuilders in the United States since 1954. It also offers real estate management, brokerage, development, construction, financial service, and mortgage brokerage, and banking services in connection with the development and sale of homes under the trade mark LENNAR. The Complainant is the proprietor/licensor/licensee of the LENNAR trade marks which are registered in the United States and China (the “Trade Mark”). The earliest Trade Mark submitted in evidence was registered in 2006 (see United States Reg. No. 3,108,401, registered on June 27, 2006). The Complainant’s official website is located at the domain name <lennar.com>.

The Respondent appears to be based in China and registered the Domain Name on March 29, 2021. The Domain Name was connected to a Chinese language gambling site with porno graphic content (the “Website”). The website at the Domain Name is now inactive.

5. Parties’ Contentions

A. Complainant

The Complainant contends that the Domain Name is confusingly similar to the Trade Mark, that the Respondent has no rights or legitimate interests with respect to the Domain Name, and that the Domain Name was registered and is being used in bad faith. The Complainant requests transfer of the Domain Name.

B. Respondent

The Respondent did not formally reply to the Complainant’s contentions. He/she sent six short emails in the Chinese language to the Center, two of which asking for communications to be in Chinese and the other four querying why he/she was a Respondent in the proceeding and what it is about.

6. Discussion and Findings

A. General

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 trade marks or service marks 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 was registered and is being used in bad faith.

B. Identical or Confusingly Similar

The Panel is satisfied that the Complainant has established that it has rights to the Trade Mark.

The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the trade mark and the domain name to determine whether the domain name is confusingly similar to the trade mark. The test involves a side-by-side comparison of the domain name and the textual components of the relevant trade mark to assess whether the mark is recognizable within the domain name.

In this case, the Domain Name is a misspelling of the Trade Mark. The second letter “e” is missing from Trade Mark LENNAR. Section 1.9 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), states that a domain name which consists of a common, obvious, or intentional misspelling of a trade mark is considered by panels to be confusingly similar to the relevant mark for the purposes of the first element. In this case, the Trade Mark is clearly recognizable in the Domain Name. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) which in this case is “.com”. It is viewed as a standard registration requirement (section 1.11 of the WIPO Overview 3.0).

The Panel finds that the Domain Name is confusingly similar to trade marks in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.

C. Rights or Legitimate Interests

Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in the domain name by demonstrating any of the following:

(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) the respondent has been commonly known by the domain name, even if it has acquired no trade mark or service mark rights; or

(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers.

Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in section 2.1 of the WIPO Overview 3.0, that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with some allegations of evidence of relevant rights or legitimate interests, the panel weighs all the evidence, with the burden of proof always remaining on the complainant.

The Complainant contends that it is not affiliated with the Respondent and has not licensed or otherwise authorized the Respondent to use the Trade Mark or register the Domain Name or any domain name. It would not appear that the Respondent is commonly known by the Domain Name nor does it have any registered trade mark rights to the Domain Name. The Respondent’s unauthorized use of the Trade Mark in the Domain Name in relation to adult material is not bona fide or legitimate noncommercial or fair use of the Domain Name.

The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded substantively to these allegations and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of 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

To succeed under the Policy, the Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement.

The Panel is satisfied that the Respondent must have been aware of the Trade Mark when it registered the Domain Name particularly since the Trade Mark has no apparent other meaning other than its significance as a trade mark belonging to the Complainant and the Domain Name is a misspelling of the Trade Mark. An Internet search for the word “lennar” shows the first couple of pages of the search results exclusively identifying the Complainant. Even a search for “LNNAR” came up with the query “Did you mean LENNAR?”. That points to a possible inference of knowledge and therefore of bad faith targeting. (Section 3.1.4 of WIPO Overview 3.0.)

In the WIPO Overview 3.0, section 3.2.2, it is stated as follows:

“Noting the near instantaneous and global reach of the Internet and search engines, and particularly in circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers), panels have been prepared to infer that the respondent knew, or have found that the respondent should have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further factors including the nature of the domain name, the chosen top-level domain, any use of the domain name, or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s mark.”

The fact that the Panel has found an absence of rights or legitimate interests coupled with no explanation for the Respondent’s choice of the Domain Name is also a factor to consider (as stated in section 3.2.1 of WIPO Overview 3.0). In light of the above, the Panel finds registration in bad faith.

The Domain Name is also used in bad faith. The Website offered gambling services and images of adult material. The services have been set up for the commercial benefit of the Respondent. It is highly likely that web users when typing the Domain Name into their browser or finding it through a search engine would have been looking for a site operated by the Complainant rather than the Respondent.

The Domain Name may confuse Internet users trying to find the Complainant’s official website. The Respondent employs the reputation of the Trade Mark to mislead users into visiting the Website. From the above, the Panel concludes that the Respondent intentionally attempted to attract for commercial gain, by misleading Internet users into believing that the Doman Name is authorised or somehow connected to the Complainant.

With regards the current inactive status of the website at the Domain Name, panels have consistently found that the passive holding of a domain name does not prevent a finding of bad faith; the change in content also indicates that the Respondent does not have a credible good faith explanation for having registered the Domain Name that did not seek to trade off of the Complainant’s mark. Section 3.3 of WIPO Overview 3.0.

The Panel therefore also concludes that the Domain Name was registered and is being used in bad faith under paragraph 4(b)(iv) 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 Domain Name <lnnar.com> be transferred to the Complainant.

Karen Fong
Sole Panelist
Date: July 19, 2021

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