[Indexed as:L.L. Bean, Inc. v. Cupcake Patrol]
[Indexed as: LLLBEAN.com]
National Arbitration Forum
Administrative Panel Decision
Claim Number: FA0007000095105
Commenced: July 11, 2000
Judgment: August 4, 2000
Presiding Panelist: Hon. James A. Carmody
Domain name - Domain name dispute resolution policy - U.S. Service mark - U.S. Trademark - Identical - Confusingly similar - Bad faith registration - Bad faith use - Famous mark - divert customers - spelling error.
Complainant supplies clothing and outdoor products through its mail order business and was established in 1912. Complainant holds 59 U.S. Federal Trademark registrations, including 8 that directly incorporate the words "L.L. Bean". Complainant sells its products on the website, <llbean.com>. Respondent registered the domain name LLLBEAN.COM. Respondent has linked this website to <online-games.org>, a site that contains numerous advertisements for on-line video games. Complainant asserts that the Respondent has sought commercial gain from the deliberate registration and use of a domain name that is a common misspelling of a well-known company name.
HELD, Name Transferred to Complainant.
Complainant has rights in the mark L.L. BEAN as evidenced by its numerous registered trademarks. Respondents domain name, "LLLBEAN.COM" is confusingly similar to Complainant's registered mark. Respondent has never had an association with Complainant nor has been commonly known by Complainants registered marks or website. Respondent has not claimed to use the domain name in connection with any bona fide offering of goods or services nor for any legitimate or fair noncommercial use. Instead, Respondent is using the website to profit from users spelling error when entering the domain name. Respondent has diverted customers and has created a likelihood of confusion with Respondent's site. This conduct is evidence of registration and use in bad faith.
Policies referred to
ICANN Uniform Domain Name Dispute Policy
ICANN Rules.
Panel decisions referred to
Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000).
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James A. Carmody, Judge (Ret.), Panelist: -
PARTIES
The Complainant is L.L. Bean, Inc., Freeport, ME, USA ("Complainant").
The Respondent is Cupcake Patrol, Andalusia, PA, USA ("Respondent").
REGISTRAR AND DISPUTED DOMAIN NAME(s)
The domain name at issue is "LLLBEAN.COM", registered with Ken Stubbs,
Internet Council of Registrars ("Stubbs").
PANELIST(s)
Hon. James A. Carmody, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
("The Forum") electronically on July 5, 2000; The Forum received a hard
copy of the Complaint on July 5, 2000.
On July 11, 2000, NSI confirmed by e-mail to The Forum that the domain
name "LLLBEAN.COM" is registered with Stubbs and that the Respondent is
the current registrant of the name.
On July 11, 2000, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of July
31, 2000 by which Respondent could file a Response to the Complaint, was
transmitted to Respondent via email, post and fax, and to all entities
and persons listed on Respondentíís registration as technical,
administrative and billing contacts by email.
On July 31, 2000, having received no Response from Respondent, using
the same contact details and methods as were used for the Commencement
Notification, The Forum transmitted to the parties a Notification of Respondent
Default.
On August 2, 2000, pursuant to Complainantíís request
to have the dispute decided by a Single Member panel, The Forum appointed
the Hon. James A. Carmody
as Panelist.
Having reviewed the communications records in the case file, the Administrative
Panel (the "Panel") finds that The Forum has discharged its responsibility
under Paragraph 2(a) of the Uniform Rules "to employ reasonably available
means calculated to achieve actual notice to Respondent." Therefore, the
Panel may issue its Decision based on the documents submitted and in accordance
with the ICANN Policy, ICANN Rules, The Forumíís Supplemental
Rules and any rules and principles of law that the panel deems applicable,
without the benefit of any Response from the Respondent.
RELIEF SOUGHT
The Complainant requests that the domain name be transferred from the
Respondent to the Complainant.
PARTIES CONTENTIONS
A. Complainant
The Complainant contends that the Respondent has registered a domain
name that is confusingly similar to its trademark registered for and in
use by the Complainant. Further, the Complainant contends that the Respondent
has no rights or legitimate interests to the domain name, and that the
respondent has registered and is using the domain name in bad faith.
The Complainant asserts that the Respondent has sought commercial gain
from the deliberate registration and use of a domain name that is a common
misspelling of a well-known company name.
A. Respondent
The Respondent submitted no response in this matter. As a result, all
reasonable inferences of fact in the allegation of the Complainant will
be deemed true.
FINDINGS
The Complainant supplies clothing and outdoor products through its
mail order business. The Complainantíís business was established
in 1912. The Complainant holds 59 U.S. Federal Trademark registrations,
including 8 that directly incorporate the words "L.L. Bean". The Complainant
sells its products on the website, <llbean.com>.
The Respondent registered the domain name in question on February 8,
2000. The Respondent has linked this website to <online-games.org>,
a site that contains numerous advertisements for on-line video games. This
site also traps the user in a seemingly endless succession of banner advertisements.
DISCUSSION
Paragraph 4(a) of the ICANN Uniform Domain Name Dispute Policy ("Policy")
directs that the complainant must prove each of the following three elements
to support a claim that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly
similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Identical and/or Confusingly Similar
The Complainant has rights in the mark L.L. BEAN as evidenced by its
numerous registered trademarks. The Respondentíís domain
name, "LLLBEAN.COM" is confusingly similar to the Complainant's registered
mark. The Respondent has registered a domain name that contains a common
misspelling of the Complainantíís famous mark. See Bama Rags,
Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding that
the domain names, <davemathewsband.com> and <davemattewsband.com>,
are common misspellings and therefore confusingly similar).
Rights or Legitimate Interests
The Complainant asserts that the Respondent has no rights or legitimate
interests in the domain names in question. The Respondent has not denied
that assertion.
The Respondent has never had an association with the Complainant nor
has been commonly known by the Complainantíís registered
marks or website. Policy _ 4(c)(ii).
The Respondent has not claimed to use the domain name in connection
with any bona fide offering of goods or services nor for any legitimate
or fair noncommercial use. Policy _ 4(c)(i), (iii). Instead, the
Respondent is using the website to profit from usersíí spelling
error when entering the domain name.
Registration and Use in Bad Faith
The Complainant asserts that the Respondent acted and is acting in
bad faith. The Respondent has not denied that assertion.
The Respondent registered the domain name in question to divert customers
from the Complainantíís on-line location to another site
for commercial gain. The Respondent has created a likelihood of confusion
as to the source, sponsorship, affiliation or endorsement of the Respondentíís
website. Policy _ 4(b)(iv). This conduct is evidence of registration
and use in bad faith. See Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat.
Arb. Forum May 8, 2000) (finding bad faith where the Respondent attracted
users to advertisements).
DECISION
Having established all three elements required by the ICANN Policy
Rule 4(a), it is the decision of the panel that the requested relief be
granted.
Accordingly, for all of the foregoing reasons, it is ordered that the
domain name, "LLLBEAN.COM" be transferred from the Respondent to the Complainant.