Generic Top Level Domain Name (gTLD) Decisions

The Complainant is L.L. Bean, Inc., Freeport, ME, USA ("Complainant") represented by Kevin R. Haley, of Brann & Isaacson, LLP. The Respondent is John Zuccarini Cupcake Patrol, Andalusia, PA, USA ("Respondent").

The domain name at issue is <lbeans.com> registered with CORE.

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge, has no known conflict in serving as a panelist in this proceeding.

Judge Harold Kalina (Ret.) as Panelist.

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on January 26, 2001; the Forum received a hard copy of the Complaint on January 25, 2001.

On Feb 2, 2001, CORE confirmed by e-mail to the Forum that the domain name <lbeans.com> is registered with CORE and that the Respondent is the current registrant of the name. CORE has verified that Respondent is bound by the CORE registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the "Policy").

On February 5, 2001, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 25, 2001 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@lbeans.com by e-mail.

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 March 2, 2001, pursuant to Complainant’s request to have the dispute decided by a One Member panel, the Forum appointed Judge Harold Kalina (Ret.) as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "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 Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any Response from the Respondent.

The Complainant requests that the domain name be transferred from the Respondent to the Complainant.

A. Complainant

Complainant asserts that Respondent’s domain name, <lbeans.com>, is identical or confusingly similar to Complainant’s mark, "L.L. Bean". In addition, Respondent has no rights or legitimate interests in relation to the domain name at issue. And finally, Respondent registered and used the domain name in bad faith.

B. Respondent

Respondent has not submitted a response in this matter.

Complainant is a Maine corporation, established in 1912, and headquartered in Freeport, Maine. Complainant has long been recognized as a supplier of quality clothing and outdoor products through its operation of one of the largest mail-order businesses in the country. Complainant holds numerous federal trademark registrations, including 15 that directly incorporate the words "L.L. Bean". Complainant uses these marks in connection with a wide variety of goods and services, including retail and mail order services. Complainant does business around the world, including, depending upon the season, between 2 and 10 million dollars a week at its web site, <llbean.com>.

Respondent registered the domain name on July 12, 2000.

Respondent has never had an association with L.L. Bean and has never been commonly known by L.L. Bean’s trademarks or official web site. Similarly, Respondent is not using <lbeans.com> in connection with an offering of goods or services.

Respondent’s registration and use of <lbeans.com> has occurred in the context of his mass registration of domain names that are confusingly similar to corporate trademarks and the names of famous persons. A common pattern for the Respondent is the registering of misspellings of legitimate domain names such as <playstation.com> and <eminem.com>. Some of the deviations registered by the Respondent were: <playsation.com>, <playstaion.com>, <enimem.com>, <emimen.com>, <eminim.com>, <emiem.com> and <enimen.com>.

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules.

Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order 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 domain name <lbeans.com> is confusingly similar to the Complainant’s "L.L. Bean" mark. The deletion of the letter "l" does not reduce the likelihood of confusion under Policy 4(a)(i). See Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding that the domain names "tdwatergouse.com" and "dwaterhouse.com" are virtually identical to Complainant’s TD WATERHOUSE name and mark).

Likewise, the addition of the letter "s" does not circumvent the Complainants’ rights in the mark nor avoid the confusing similarity aspect under Policy 4(a)(i). See Cream Pie Club v. Halford, FA 95235 (Nat. Arb. Forum Aug. 17, 2000) (finding that "the addition of an "s" to the end of the Complainant’s mark, "Cream Pie" does not prevent the likelihood of confusion caused by the use of the remaining identical mark. The domain name "creampies.com" is similar in sound, appearance, and connotation"); see also Victoria's Secret et al v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding "victoriasecerets.com", "victoriasecretes.com", "victoreasecret.com", "victoriasecerts.com" and other variations thereof are confusingly similar to VICTORIA'S SECRET).

Complainant asserts that the Respondent has no rights or legitimate interests in the domain names in question. The Respondent has not denied that assertion. See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that "Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the Domain Names").

Respondent has never had an association with the Complainant nor has been commonly known by the Complainant’s registered marks or web site. Policy 4(c)(ii).

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).

Therefore the Panel concludes that Respondent has no rights or legitimate interests in the domain name. See Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where the Respondent has advanced no basis on which the Panel could conclude that it has a right or legitimate interest in the domain names and no use of the domain names has been proven).

Respondent has demonstrated bad faith under Policy 4(b)(ii), by preventing Complainant from registering the domain name that reflects Complainant’s mark and by exhibiting a pattern of registering misspellings of famous trademarks and names. See Gamesville.com, Inc. v. Zuccarini, FA 95294 (Nat. Arb. Forum Aug. 30, 2000) (finding that Respondent has engaged in a pattern of conduct of registering domain names to prevent the owner of the trademark from reflecting the mark in a corresponding domain name, which is evidence of registration and use in bad faith).

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 <lbeans.com> be transferred from the Respondent to the Complainant.