The Complainant is LittleThings, Inc. of New York, New York, United States of America ("United States"), represented by Klein Moynihan Turco LLP, United States.
The Respondent is East Softwear of Lahore, Pakistan. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom, Inc. (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 4, 2016. On November 7, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent's contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 10, 2016. In accordance with the Rules, paragraph 5, the due date for Response was November 30, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on December 1, 2016.
The Center appointed Andrew F. Christie as the sole panelist in this matter on December 9, 2016. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is a leading digital publisher of a wide variety of lifestyle media. It owns and operates, inter alia, the domain name and the website resolving from that domain name ("LittleThings website"), and associated social media pages. The LittleThings website is the second largest Facebook publisher, the fifth largest mobile website, the seventh ranked lifestyles website and the 61st largest website in the United States, with 55.5 million monthly readers and 13 million social fans.
The Complainant is the owner of the United States registered trademark LITTLETHINGS.COM, registered on July 12, 2016 (first used in commerce on August 29, 2014) in respect of a variety of media publishing, entertainment, advertising, marketing and website-related services. The Complainant asserted it was the exclusive owner of all rights, title and interest in and to United States registered trademark LITTLETHINGS, registered on October 27, 2015 in the name of PetFlow, Inc. in respect of providing a website that gives computer users the ability to upload and share user-generated videos, essays and articles on a wide variety of topics and subjects.
The disputed domain name was registered on April 11, 2016. The Complainant has provided screenshots of the website resolving from the disputed domain name in mid-April 2016, then titled "LitThings Buzz", showing that it contained a range of entertainment and media publishing services, including erotic and sexual articles. Some time between May 2016 and October 2016 the Respondent renamed the website resolving from the disputed domain name to "LitThings". 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to the trademarks in which the Complainant has rights because: (i) the dominant components of the disputed domain name are confusingly similar and practically identical, both visually and aurally, to its trademarks LITTLETHINGS and LITTLETHINGS.COM, with both having the identical first syllable "lit" and dominant ending syllable "things", whilst the absence of the three letters "tle" has little effect in distinguishing the marks; and (ii) the generic Top-Level Domain ("gTLD") identifier ".com" should not be ignored in this case because it is part of the Complainant's registered LITTLETHINGS.COM trademark, further supporting the conclusion that the disputed domain name is confusingly similar.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name because: (i) the Respondent has made no use of the disputed domain name in connection with a bona fide offering of goods or services, such as in connection with the domain name's generic or descriptive meaning; (ii) the Respondent has traded off the Complainant's rights in and to the LITTLETHINGS and LITTLETHINGS.COM trademarks by using the disputed domain name in connection with an offering, by and through its website, of the same services as the Complainant offers (albeit of an erotic and sexual nature), namely media publishing, entertainment, advertising, marketing and website-related services; and (iii) the Respondent is placing third-party advertisements on the "LitThings" website resolving from the disputed domain name for commercial gain, thereby misleadingly diverting consumers from the Complainant's "LittleThings" website and tarnishing the LITTLETHINGS and LITTLETHINGS.COM trademarks.
The Complainant contends that the disputed domain name was registered and is being used in bad faith because: (i) prior to the Respondent's registration of the disputed domain name the Complainant became the legitimate owner of the registered LITTLETHINGS trademark; (ii) the Complainant and the LITTLETHINGS and LITTLETHINGS.COM trademarks are well known and have been the subject of substantial media attention; (iii) the Respondent is clearly aware of the Complainant, and it is clear that the aim of the Respondent's registration of the disputed domain name was to disrupt the business of the Complainant and take advantage of the confusion between the disputed domain name and the Complainant's LITTLETHINGS and LITTLETHINGS.COM trademarks; (iv) the Respondent is intentionally attracting Internet users to its "LitThings" website resolving from the disputed domain name, and associated social media pages, for commercial gain by creating a likelihood of confusion with the LITTLETHINGS and LITTLETHINGS.COM trademarks as to the source, sponsorship, affiliation and/or endorsement of the Respondent's services; (v) the Respondent used the meta tag "Little Things" at least ten times on the "LitThings" website homepage resolving from the disputed domain name, causing the "LitThings" website's name and title to appear as "Little Things" in Internet users' search engine results and web browsers; (vi) the Respondent has reproduced and displayed the Complainant's mission statement and "story" on the Respondent's Facebook page without permission; (vii) by connecting a confusingly similar domain name to a website containing erotic or sexual material the Complainant's trademarks are tarnished; and (viii) after conducting an extensive Internet search for the Respondent's alleged name, "East Software", the Complainant was unable to identify any business operating under that corporate or fictitious name in Pakistan or otherwise, suggesting that the Respondent is concealing its underlying identity for the purpose of frustrating assessment of liability in relation to the Respondent's registration and use of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant asserted it was the exclusive owner of all rights, title and interest in and to United States registered trademark LITTLETHINGS. However, the evidence provided by the Complainant shows that this trademark is registered in the name of PetFlow, Inc., not the Complainant. No explanation as to the basis of the Complainant's claim to ownership of this trademark was provided (although the Panel notes that PetFlow, Inc. and Little Things, Inc. share the same address). In the absence of any explanation or affirmative evidence for the claim of ownership of the LITTLETHINGS trademark, no finding will be made in relation to it.
The disputed domain name incorporates the dominant part of the Complainant's registered LITTLETHINGS.COM trademark, with the absence of three letters "tle". Visually and aurally, the disputed domain name is very similar to the Complainant's LITTLETHINGS.COM trademark, especially when the gTLD identifier ".com" is taken into consideration (as is appropriate to do in this case). It is significant that the missing letters ("tle") are not at the beginning of the disputed domain name, and form a separate, non-stressed, syllable of the disputed domain name as it would be pronounced in English, meaning that the first letters and the stressed syllable of the disputed domain name ("lit") remains together with the dominant ending word and syllable "things". In the Panel's view, the string "litthings" is strongly suggestive of the phrase "little things". In the absence of any argument by the Respondent to the contrary, the Panel is comfortable in concluding that the deletion of letters "tle" does not lessen the confusing similarity between the disputed domain name and the Complainant's LITTLETHINGS.COM trademark. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. B. Rights or Legitimate Interests
The Respondent is not a licensee of, or otherwise affiliated with, the Complainant, and has not been authorized by the Complainant to use its LITTLETHINGS.COM trademark. The Respondent has not provided any evidence that it has been commonly known by, or has made a bona fide use of, the disputed domain name, or that it has, for any other reason, rights or legitimate interests in the disputed domain name. The evidence provided by the Complainant shows that the disputed domain name was used to resolve to a website which offered similar services to the Complainant's in the areas of media publishing, entertainment, advertising, marketing and website-related services, albeit of an erotic or sexual nature. According to the present record, therefore, the disputed domain name is not being used in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith
The disputed domain name was registered by the Respondent three months before the Complainant registered, but more than 18 months after the Complainant began using in commerce, its LITTLETHINGS.COM trademark. The evidence on the record provided by the Complainant with respect to its use of the LITTLETHINGS.COM trademark and the content of the website to which the disputed domain name resolved – including, in particular, the use of "Little Things" as a meta-tag in the source code thereof – combined with the absence of any evidence provided by the Respondent to the contrary, is sufficient to satisfy the Panel that, at the time the disputed domain name was registered, the Respondent knew of the Complainant's LITTLETHINGS.COM trademark and knew that it had no rights or legitimate interests in the disputed domain name. Furthermore, the evidence on the record provided by the Complainant with respect to the Respondent's use of the disputed domain name indicates that the Respondent has used the disputed domain name to attract, for commercial gain, Internet users to a website by creating confusion in the minds of the public as to an association between the website and the Complainant. For all these reasons, the Panel is satisfied that the disputed domain name has been registered and is being used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Andrew F. Christie
Sole Panelist
Date: December 23, 2016
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