Limited Stores, LLC which operate the Limited Stores, just lost a UDRP on the domain name limitedcoupon.com despite the fact that the domain holder did not file a response.
Here are the relevant findings from the one member panel:
The Complainant’s allegations of bad faith are all said to be on the basis of “upon information and belief”.
What information and by whom was it provided?
The Complaint does not say.
In fact, on this topic the Complaint is remarkably short of information. “Upon information and belief” appears to be a short-form expression meaning “we have no relevant information, but bad faith is to be inferred from the facts and we believe that that is the appropriate inference to draw”.
The “facts” in question are the following:
1. The Complainant claims that its trade mark, THE LIMITED, is very well known in the United States of America.
2. It is so well known that the Respondent must have known of it when registering the Domain Name.
3. The fact that the Respondent has added the word “coupon” to the word “limited” is indicative of the fact that the Respondent had retailers in mind, coupons being a common marketing device for retailers. In this context the word “limited” can only be a reference to the Complainant and the Complainant’s trade mark, THE LIMITED.
4. This is supported by the fact that the Respondent’s webpage features numerous links to other retailers and their coupons.
5. On top of all that, the Complainant’s trade mark registrations are United States federal trade mark registrations and by operation of United States law the Respondent has constructive notice of those registrations.
The Panel is not persuaded.
The word “limited” is a dictionary word.
Is the Complainant’s fame in the United States of America under the name THE LIMITED so substantial that a resident of Vancouver, Canada must have heard of it?
It is possible, of course, but the Panel has been given no information upon which to make that leap.
The Panel is also concerned that the definite article present in the Complainant’s trade marks is absent from the Domain Name. In the view of the Panel the absence of the definite article from the Domain Name could be a significant factor militating against a likelihood of confusion. It is to be observed that no evidence of any kind has been put before the Panel to demonstrate that “Limited” on its own (i.e. without the definite article, “The”) is ever taken to be a reference to the Complainant. That evidence may be available, but it has not been put before the Panel.
What is the significance of the fact that many of the links on the Respondent’s website are to retailers and their coupons? The Panel suspects that it is the word “coupon” which has led to these links. There is nothing on the website screenshot annexed to the Complaint to lead any reader to associate any of the links with the Complainant. Indeed, the Panel could not find any reference to the Complainant.
It may be of course that this result has been engineered by the Respondent, but here we are dealing with a domain name featuring ordinary dictionary words, the Domain Name does not incorporate the Complainant’s trade mark in full, the parties are in different jurisdictions and there is nothing before the Panel to suggest that the Respondent has a track record as a cybersquatter. There is nothing concrete upon which the Panel can make a finding of bad faith.
As to the contention that the Respondent has constructive notice of the Complainant’s trade mark registration, this argument, when it works, generally only works when a respondent is located in the United States and a complainant has a federal US trade mark. In any event, this Panel takes the view that constructive knowledge and constructive bad faith are two very different concepts.
In the view of this Panel a finding that a respondent has acted in bad faith for the purposes of paragraph 4(a)(iii) of the Policy should generally only be made where the respondent has in fact acted in bad faith or where there is very cogent evidence before the Panel as to the surrounding circumstances sufficient to support an inference to that effect. Here, in the view of the Panel, the evidence falls far short of that.
The Panel is not persuaded that the Domain Name was registered or is being used in bad faith”