The UDRP decision for the domain LandsCentral.com delivered good news to the Respondent.
Filed by Latitude Funding LLC at the Forum (NAF) the UDRP was based on the similarity of the domain with the Complainant’s brand, LANDCENTRAL.
That extra “S” triggered a legal war, apparently, but according to the UDRP, the Respondent failed to provide essential information about their identity and in particular:
The document submitted by Respondent is missing critical components required by Paragraph 5 of the Rules (referenced in the Written Notice of Complaint). Most significantly, it does not include Respondent’s name, address, or telephone number, nor that of an authorized representative; it does not state that it was sent or transmitted to Complainant; and it includes neither a certification of accuracy nor the signature of Respondent or an authorized representative. Rather than rejecting the Response altogether, in the interest of fairness the Panel elects to consider the documentary evidence submitted by Respondent to the extent that it appears to be credible and is readily subject to independent verification.
The sole panelist at the Forum ordered the domain to remain with the Respondent – whoever they are.
The domain transfer was denied.
Latitude Funding LLC v. Anthony k / Lands Central
Claim Number: FA2202001983304
PARTIES
Complainant is Latitude Funding LLC (“Complainant”), represented by Eric Perrott of Gerben Perrott, PLLC, District of Columbia, USA. Respondent is Anthony k / Lands Central (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is , registered with NameCheap, Inc..
PANEL
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the Forum electronically on February 4, 2022; the Forum received payment on February 4, 2022.
On February 7, 2022, NameCheap, Inc. confirmed by email to the Forum that the domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On February 7, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 28, 2022 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@landscentral.com. Also on February 7, 2022, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts.
A timely Response was received on February 28, 2022.
On March 2, 2022, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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” through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant is a Delaware limited liability company. Complainant states that it has used the LANDCENTRAL mark in connection with online real estate services since at least as early as 2008. Complainant owns a United States trademark registration for LANDCENTRAL in standard character form issued in 2017 with a first use date of 2000, and a registration for a design mark with LANDCENTRAL as the textual component issued in 2017 with a first use date of 2008. Complainant also owns and uses the domain name .
Respondent registered the disputed domain name via a privacy registration service in July 2020. The domain name is being used for a website that offers land in California for sale. Complainant alleges that Respondent’s website is purposely designed to attract and generate revenue from Internet users seeking Complainant.
Complainant contends on the above grounds that the disputed domain name is confusingly similar to its LAND CENTRAL mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
The document submitted by Respondent is missing critical components required by Paragraph 5 of the Rules (referenced in the Written Notice of Complaint). Most significantly, it does not include Respondent’s name, address, or telephone number, nor that of an authorized representative; it does not state that it was sent or transmitted to Complainant; and it includes neither a certification of accuracy nor the signature of Respondent or an authorized representative. Rather than rejecting the Response altogether, in the interest of fairness the Panel elects to consider the documentary evidence submitted by Respondent to the extent that it appears to be credible and is readily subject to independent verification.
Respondent claims to be using the disputed domain name for a business called Lands Central LLC, which is registered under that name as a limited liability company in Wyoming and, formerly, in Iowa. These assertions are supported by copies of a Wyoming certificate of good standing and articles of incorporation for “lands central llc” dated March 25, 2021, and an Iowa certificate of organization for “Lands Central LLC” dated July 21, 2020. The Panel has verified the authenticity of these documents via the corresponding government websites.
FINDINGS
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
The Panel further finds that Complainant has not proved that Respondent lacks rights or legitimate interests in respect of the disputed domain name, nor that the disputed domain name was registered and is being used in bad faith.
DISCUSSION
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.”
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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 disputed domain name incorporates Complainant’s registered LANDCENTRAL trademark, inserting a letter “S” and appending the “.com” top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant’s mark. See, e.g., Homer TLC, Inc. v. Zhichao Yang, FA 1508957 (Forum Aug. 24, 2013) (finding
confusingly similar to THE HOME DEPOT); State Farm Mutual Automobile Insurance Co. v. Domain For Sale Latonya Thompson a/k/a Domain For Sale Thompson a/k/a Latonya Thompson a/k/a www.YouEnvyMe.com, Inc., FA 366229 (Forum Jan. 17, 2005) (finding confusingly similar to STATE FARM). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Rights or Legitimate Interests
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006). However, the ultimate burden of proof on this issue (as on all of the elements required by the Policy) remains with Complainant. See Vanity Shop of Grand Forks, Inc. v. Domain Administrator / Vertical Axis Inc., FA 1595932 (Forum Jan. 20, 2015).
Paragraph 4(c)(i) of the Policy provides that a Respondent’s rights or legitimate interests are demonstrated by use or demonstrable preparations for use of the domain name or a corresponding name in connection with a bona fide offering of goods or services prior to any notice of the dispute. An intentionally infringing use does not qualify as a bona fide offering, but the infringement must be clear; cases involving legitimate disputes over trademark rights are not susceptible to adjudication under the Policy. See, e.g., America Online, Inc. v. Inetekk.com, Inc., FA 231685 (Forum Mar. 17, 2004).
In this case, the evidence of bona fide use in this case is fairly thin, consisting primarily of the screenshot of Respondent’s website submitted by Complainant and the state certifications of an entity, apparently Respondent, registered to do business under a name corresponding to the disputed domain name. (The Iowa LLC registration was filed in late July 2020, a few weeks after the registration of the disputed domain name, and long prior to any notice of this dispute.)
Complainant asserts that the purpose of Respondent’s website is to confuse consumers and benefit from Complainant’s goodwill, rather than to engage in a bond fide offering of goods or services. In the Panel’s view, the available evidence does not dictate such a conclusion. It seems entirely plausible that Respondent may have been unaware of Complainant’s mark and that it selected and is using the domain name and corresponding business name for reasons entirely unrelated to Complainant.
The Panel finds that Complainant has failed to meet its burden of proof on this issue.
Registration and Use in Bad Faith
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name “primarily for the purpose of disrupting the business of a competitor.” Under paragraph 4(b)(iv), bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
For essentially the same reasons as those set forth under Rights or Legitimate Interests, the Panel finds that Complainant has failed to prove that the disputed domain name was registered and is being used in bad faith.
DECISION
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the domain name REMAIN WITH Respondent.
David E. Sorkin, Panelist
Dated: March 3, 2022
