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L.L. Bean v. Cupcake Patrol [2000] GENDND 835 (4 August 2000)

National Arbitration Forum

DECISION

L.L. Bean, Inc. v. Cupcake Patrol

Claim Number: FA0007000095105

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 Respondentís 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 Complainantís 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 Forumís 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.

PARTIESí 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.

1. 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 Complainantís 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.

The Complainant has rights in the mark L.L. BEAN as evidenced by its numerous registered trademarks. The Respondentís 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 Complainantís 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).

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 Complainantís 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 usersí spelling error when entering the domain name.

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 Complainantís 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 Respondentís 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.

James A. Carmody, Judge (Ret.), Panelist
Dated: August 4, 2000