Sam Ash LLC, owner of long-standing SAM ASH and SAM ASH MUSIC trademarks and domains samash.com / samashmusic.com, went after SmashMusic.net, arguing it was just one letter off “samashmusic” and deliberately set up to catch typo traffic in the same musical-instrument space.
The complaint painted Smash Music as a Monster Music spin-off trying to trade on a century of Sam Ash goodwill, pointing to the “102 years as a music store in the same space” blurb on the site as supposed bad-faith signaling.
Respondent Keith Reardon, represented by counsel, pushed back that Smash Music is a local brick-and-mortar shop using smashmusic.net only as an informational site, with no online sales or lessons, and that “smash” was chosen for its plain meaning (smashing the competition), not as a misspelling of “Sam Ash.” He noted Sam Ash no longer runs physical stores, that no search tests showed Sam Ash queries leading to Smash Music, and that the choice of .net over .com was purely cost-driven, not a scheme to mimic Sam Ash’s .com domains.
The panel sidestepped a definitive ruling on confusing similarity and focused instead on the complainant’s burden. On rights or legitimate interests, Sam Ash offered only bare assertions, no real evidence, and didn’t even frame its case under the Policy’s paragraph 4(c) tests, so it failed to make the required prima facie showing that Respondent lacked rights or legitimate interests. On bad faith, the complaint relied on a single conclusory sentence about the “About us” copy without tying it to any 4(b) factors or supporting authority, which the panel found inadequate under the UDRP’s preponderance-of-evidence standard.
Final decision: Complaint denied; smashmusic.net remains with the Respondent.
Copyright © 2025 DomainGang.com · All Rights Reserved.Sam Ash LLC v. Keith Reardon
Claim Number: FA2511002188625
PARTIES
Complainant is Sam Ash LLC (“Complainant”), represented by Jessica G. Kraver of Katten Muchin Rosenman LLP, New York, USA. Respondent is Keith Reardon (“Respondent”), represented by Ira Bierman of Law Offices of Ira M Bierman, New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is smashmusic.net (the “Disputed Domain Name”), registered with GoDaddy.com, LLC.
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.
Douglas M. Isenberg as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on November 13, 2025; Forum received payment on November 13, 2025.
On November 13, 2025, GoDaddy.com, LLC confirmed by e-mail to Forum that the Disputed Domain Name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 November 14, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 4, 2025 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@smashmusic.net. Also on November 14, 2025, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 and determined to be complete on December 4, 2025.
On December 5, 2025, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, Forum appointed Douglas M. Isenberg as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that 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 Disputed Domain Name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant states the following:
Complainant is the owner of a family of incontestable federally registered trademarks for SAM ASH formative marks, including, among many others, U.S. Trademark Registration No. 1,385,208 for the mark SAM ASH and U.S. Trademark Registration No. 2,399,403 for the mark SAM ASH MUSIC, each covering, among other things, “retail store services in the field of musical instruments and related accessories”, and reciting a date of first use of April, 1924 (collectively, the “Sam Ash Music Marks”, as shown on Exhibits A and B). Complainant’s Sam Ash Music Marks have been in use in the music business for over a century and Complainant’s own commercial websites are accessible at the domain names samash.com and samashmusic.com, which Complainant has owned for decades.
The “Factual and Legal Grounds” section of the Complaint states, in its entirety, the following:
a. The domain name smashmusic.net is visually and phonetically similar to samashmusic.com and likely to cause consumer confusion as to the source of goods and services. There is only a single letter difference between “smashmusic” and “samashmusic” (the letter “a”) and consumers searching for Complainant’s website or products are likely to find Respondent’s website and products.
b. The Respondent runs a business under the name Monster Music and secured the domain name registration smashmusic.net on July 25, 2025. Upon information and belief, Respondent has no rights or legitimate interests in the domain name smashmusic.net other than as a means of causing confusion with the Sam Ash Music Marks and Complainant as a source of goods and services. As noted above, Complainant owns the domain names samash.com and samashmusic.com; in adopting the domain name smashmusic.net, Respondent is intentionally misdirecting web traffic toward its business by sowing consumer confusion. Respondent’s use of the .net domain extension, rather than the .com domain extension, is further evidence of Respondent’s awareness of Complainant’s .com domain names.
c. “Smash” is a common typographical error made by customers seeking to spell “SamAsh” on web browsers. Given (i) the visual and phonetic similarities between the names “Sam Ash Music” and “Smash Music”, (ii) the long history of the Sam Ash Music Marks, and (iii) the fact that both Complainant and Respondent sell musical instruments and offer related services, the domain name smashmusic.net is deliberately misleading and its use by Respondent trades on the goodwill of the Sam Ash Music Marks. Evidence of Respondent’s bad faith can be seen in on the “About Us” section of its website, which refers to “the space the[sic] had been a music store for 102 years in the same space,” clearly intending to invoke an association with Complainant.
B. Respondent
The “Factual and Legal Grounds” section of the Response states, in its entirety, the following:
a. The Respondent denies the Complainant’s claim that Smashmusic.net is visually and phonetically similar to Samashmusic.com and that consumers searching for Complainant’s website are likely to find Respondent’s website and products. Saliently the Respondent does not sell products on its website. Therefore, consumers looking to purchase products sold by Sam Ash on its website, but by happenchance, accident or fluke, mistakenly type in the Respondent’s domain name in its browser will immediately notice that products are not sold on the Smash Music website, and then in all probability will correct the domain name search.
b. Complainant incorrectly states that the Respondent runs a business under the name Monster Music. Respondent is a limited liability company, doing business under the name Smash Music. The intent in filing under the domain name of Smash Music is to advise the public that it is “smashing” the competition and that it will “smash” the prices to beat its competition. The intent was not to trick the public into thinking that its store is derivative of Sam Ash.
Further, the Respondent is a brick-and-mortar store. Sam Ash is no longer a brick-and-mortar store. The Respondent does not sell products or music lessons through its website and on the internet. Unlike Sam Ash, the public must come to the Respondent’s store to purchase products or lessons. Indeed, the Respondent’s website is not set up as a “source of goods and services” as the Complainant asserts. The website was established to advise the public of the Respondent’s existence and to direct the public into its store. The website was not established to help the public buy products and divert business away from Sam Ash.
Sam Ash does not have any brick-and-mortar store. Any consumer who inadvertently searches for Sam Ash and arrives at the Smash Music website would immediately notice that Smash Music is a brick-and-mortar store that primarily provides lessons and does not sell any items through its website. Therefore, Smash Music website does not have any effect on the Complainant’s internet marketing.
Complainant’s assertion that the Respondent has no rights or legitimate interest in the domain name, other than to cause confusion is conclusory and unsupported by any evidence.
The Complainant’s allegation regarding the Respondent’s having a .net domain name, rather than a .com domain name, was not based on any nefarious or malicious intent, but was purely based on the expenses of using a .com suffix rather than a .net suffix. Belying the claim of the Complainant, a smashmusic.com domain is available through Go Daddy. The Respondent chose not to purchase the .com domain because of the expense.
c. Although the Complainant alleges that “Smash” is a common typographical error made by customers seeking to spell “Sam Ash” on its web browser, no such proof was submitted to support its claim. Said statement is clearly a supposition. Not only would a customer have to make a typographical error by typing in Smash rather than Sam Ash, but the potential customer would also have to type a “.net” rather than “.com”. Further, as indicated above, the domain name, smashmusic.net is purely an informational website. A customer cannot purchase musical instruments, sheet music or sign up for lessons on the samashmusic.net website.
d. The Respondent has tested various iterations of typos and such and determined the following: No ‘googling’ or search engine use of Sam Ash or Samash led to any result pertaining to or pointing to Smash Music. All tested variants of Smash Music, SmashMusic, etc. led to Samash.com and Sam Ash as a result of said search, and not vice versa.
Further, contrary to the claims of the Complainant, the “About Us” Section on the website cannot even remotely be considered a reference to Sam Ash or suggest that the store was formerly a Sam Ash brick-and-mortar store. The About Us Section simply states that the space has been a music store for one hundred and two (102) years, without reflecting that during part of the one hundred and two (102) years the store was leased to Sam Ash.
The “About Us” section also sets forth a contact email address of monstermusicny@gmail.com. There are no statements or any details on the website that suggest a connection to Sam Ash. Sam Ash does not have any brick-and-mortar store.
FINDINGS
For the reasons set out below, the Panel finds for Respondent and orders that the Disputed Domain Name remain with Respondent.
DISCUSSION
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted and 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
Based upon the trademark registrations cited by Complainant, it is apparent that Complainant has rights in and to SAM ASH and SAM ASH MUSIC.
The relevant comparison to be made is with the second-level portion of the Disputed Domain Name only (i.e., “smashmusic”) because “[t]he applicable Top-Level Domain (‘TLD’) in a domain name (e.g., ‘.com’, ‘.club’, ‘.nyc’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test”. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.1.
Here, Complainant has noted that “[t]here is only a single letter difference between ‘smashmusic’ and ‘samashmusic’.” Usually, such a minor difference is irrelevant for purposes of confusing similarity under the Policy. Indeed, section 1.7 of WIPO Overview 3.0 says that “[t]he standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the complainant’s trademark and the disputed domain name.” Further, section 1.9 of WIPO Overview 3.0 says that “[a] domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element,” and that “a misspelling” of a trademark or “typos” are usually insufficient for a finding of confusing similarity.
However, not only has Complainant failed to cite these sections of WIPO Overview 3.0 – or any previous decisions under the Policy as precedent – but Respondent has provided an explanation as to why it registered the Disputed Domain Name: “to advise the public that it is ‘smashing’ the competition and that it will ‘smash’ the prices to beat its competition.”
Indeed, previous panels have noted that “small differences matter.” Tire Discounters, Inc. v. TireDiscounter.com, FA 679485 (Forum June 14, 2006). See also, e.g., Forest Laboratories, Inc. v. Natural Products Solutions LLC, WIPO Case No. D2011-1032 (“[a] single-letter addition or substitution does not automatically mean confusing similarity”); and Tumblr, Inc. v. Bai Ling, WIPO Case No. D2013-0220 (“not every situation in which a domain name differs from a trademark by one or two characters necessarily results in confusingly similarity”).
A minor difference is especially relevant where, as here, the difference results in a word that is distinguishable from the relevant trademark. See, e.g., Mapfre Familiar, Compañía de Seguros y Reaseguros, S.A. v. Whois Privacy Services Pty Ltd / Vertical Axis Inc., WIPO Case No. D2014-0020 (“[a]lthough visually the difference between the trade mark and the Domain Name consists of the addition of one letter ‘e’ in the Domain Name, the meaning of the trade mark and the Domain Name are entirely different”); eCrush.com, Inc. v. Cox, Davis & Simpsom, LLC, Mr. Ken Cox, Mr. Brian Simpson, Mr. Ron Davis, WIPO Case No. D2004-0552 (“[t]he one-letter change is not a misspelling of Complainant’s mark that results in an otherwise nonsensical word or phrase”); and NaturaLawn of America, Inc. v. Jeff Edwards, FA 1372111 (Forum Mar. 16, 2001) (one-letter difference has “changed its entire meaning”).
Nevertheless, the Panel is mindful that Respondent’s website using the Disputed Domain Name is associated with musical instruments, which are clearly related to the services listed in Complainant’s registration for the SAM ASH trademark (“retail store services in the field of musical instruments and related accessories; and rental of musical instruments”). And, “[i]n some instances, panels have… taken note of the content of the website associated with a domain name to confirm confusing similarity whereby it appears prima facie that the respondent seeks to target a trademark through the disputed domain name.” WIPO Overview 3.0, section 1.15.
The scant arguments from each of the parties only makes the Panel’s determination on the first element of the Policy more difficult. As a result, and because the Panel’s determination in this proceeding is not dependent on its analysis of paragraph 4(a)(i) of the Policy, the Panel declines to do so here.
Rights or Legitimate Interests
The entirety of Complainant’s arguments with respect to rights or legitimate interests is as follows:
The Respondent runs a business under the name Monster Music and secured the domain name registration smashmusic.net on July 25, 2025. Upon information and belief, Respondent has no rights or legitimate interests in the domain name smashmusic.net other than as a means of causing confusion with the Sam Ash Music Marks and Complainant as a source of goods and services. As noted above, Complainant owns the domain names samash.com and samashmusic.com; in adopting the domain name smashmusic.net, Respondent is intentionally misdirecting web traffic toward its business by sowing consumer confusion. Respondent’s use of the .net domain extension, rather than the .com domain extension, is further evidence of Respondent’s awareness of Complainant’s .com domain names
As set forth in an early decision under the Policy: “It is relatively difficult for any complainant to prove beyond a shadow of a doubt that a respondent has no rights or legitimate interests in a domain name. By and large, such information is known to and within the control of the respondent. Accordingly, the burden on a complainant in respect of this element must, by necessity, be relatively light.” Educational Testing Service v. Netkorea Co., WIPO Case No. D2000-0087.
And, as set forth in section 2.1 of WIPO Overview 3.0: “While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name.”
Therefore, the initial question under this element of the Policy in this case is whether Complainant has satisfied the “relatively light” burden of establishing a prima facie case that Respondent lacks rights or legitimate interests in the Disputed Domain Name.
Other than providing a screenshot of the home page of Respondent’s website associated with the Disputed Domain Name, Complainant provides no evidence to support its arguments, nor does Complainant cite any authority – in WIPO Overview 3.0 or previous decisions under the Policy – in its favor. In fact, Complainant has not even referred to, let alone argued why Respondent lacks rights or legitimate interests under, any of the circumstances set forth in paragraph 4(c) of the Policy. Complainant does not even allege that Respondent has failed to engage in “a bona fide offering of goods or services” or that Respondent has not “been commonly known by the domain name,” and it is at best unclear whether Complainant has alleged that Respondent has failed to make “a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.”
In the absence of persuasive evidence and any legal arguments, the Panel is unable to conclude that Complainant has made out a prima facie case that Respondent lacks rights or legitimate interests. Therefore, it is unnecessary for the Panel to even consider Respondent’s arguments on this element.
The Panel finds the second element of the Policy has not been established.
Registration and Use in Bad Faith
Whether a domain name is registered and used in bad faith for purposes of the Policy may be determined by evaluating four (non-exhaustive) factors set forth in the Policy: (i) circumstances indicating that the registrant has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the registrant’s documented out-of-pocket costs directly related to the domain name; or (ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or (iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to the registrant’s website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the registrant’s website or location or of a product or service on the registrant’s website or location. Policy, paragraph 4(b).
Here, Complainant makes no references to any of the above bad faith factors. Indeed, the only reference Complainant makes to bad faith at all is contained in a single sentence: “Evidence of Respondent’s bad faith can be seen in on the ‘About Us’ section of its website, which refers to ‘the space the[sic] had been a music store for 102 years in the same space,’ clearly intending to invoke an association with Complainant.” Without elaboration, argument or citation to any authority, this fails to satisfy a complainant’s burden of proof under the Policy.1
The Policy and the Rules, as well as more than 25 years of decisions, make clear what is required in parties’ submissions. For example, Rule 3(b)(ix) says that a complaint shall describe “why the domain name(s) should be considered as having been registered and being used in bad faith.” However, Complainant’s lone, conclusory statement about bad faith fails to meet this requirement. See, e.g., PJS International SA v. Carl Johansson, WIPO Case No. D2013-0807 (“[t]he Complainant’s case on bad faith is… deficient” and “amounts to little more than a couple of conclusory statements”).
To be clear: The Panel’s decision here is based solely on the Complaint’s limited record and nonexistent legal arguments and should not be construed as anything other than a finding that Complainant has failed to satisfy its burden of proof in this proceeding. Here, just as in a previous decision, “[t]he Panel has carefully considered the evidence on record, and notes that at first glance the facts of this case appear to provide the foundation for the Complainant to bring a strong case under the Policy. However…, the complete lack of any relevant evidence in… the Complaint… to support Complainant’s assertion that the disputed domain name[] [was] registered in bad faith has left the Panel with no alternative but to deny the Complaint. Consequently, Complainant fails on the third element.” Hallmark Licensing, LLC v. EWebMall, Inc., WIPO Case No. D2015-2202.
The Panel finds the third element of the Policy has not been established.
DECISION
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the smashmusic.net domain name REMAIN WITH Respondent.
Douglas M. Isenberg, Panelist
Dated: December 10, 2025
[1] “The applicable standard of proof in UDRP cases is the ‘balance of probabilities’ or ‘preponderance of the evidence’; some panels have also expressed this as an ‘on balance’ standard. Under this standard, a party should demonstrate to a panel’s satisfaction that it is more likely than not that a claimed fact is true.” WIPO Overview 3.0, section 4.2
