WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Lakes Gas Co. v. Domain Administrator, DomainM Case No. D2019-0830 1. The Parties

Complainant is Lakes Gas Co., United States of America (“United States”), represented by Fredrikson & Byron, P.A., United States.

Respondent is Domain Administrator, DomainM, United States, represented by Brian H. Leventhal, United States. 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 April 11, 2019. On April 12, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 15, 2019, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on April 23, 2019, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on April 26, 2019.

The Center verified that the Complaint together with the amended 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 April 29, 2019. In accordance with the Rules, paragraph 5, the due date for Response was May 19, 2019. Upon request of Respondent, the due date for Response was automatically extended to May 23, 2019, in accordance with the Rules, paragraph 5(b). The Response was filed with the Center on May 24, 2019.

On May 30, 2019, the Center received a supplemental filing filed by Complainant. On June 14, 2019, the Center received a supplemental filing from Respondent.

The Center appointed Brian J. Winterfeldt as the sole panelist in this matter on June 6, 2019. 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

Complainant Lakes Gas Co., (“Lakes Gas” or “Complainant”) operates a propane company in the United States under the name Lakes Gas. Complainant is one of the top 15 largest propane companies in the United States, operates more than 40 branches, and serves over 70,000 customers through over 60 million gallons of propane sold annually. Complainant’s business largely serves individuals, farms, factories, and construction sites. Complainant spends roughly USD 500,000 per year on advertising in the United States and in Canada.

Respondent DomainM, (“Respondent”) operates a business of buying and selling domain names on the secondary marketplace through its website “www.domainm”. Respondent registered the disputed domain name, , on January 8, 2011. At the time of Complainant’s filing, the disputed domain name resolved to a parked page. 5. Parties’ Contentions A. Complainant

Complainant contends the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights. Complainant asserts that its trademark and tradename LAKES GAS has been used for almost sixty years, being first used in 1959, long before the January 8, 2011 registration of the disputed domain name by Respondent. Complainant further asserts that the addition of the top-level domain name is not a defense to a finding of confusing similarity between the disputed domain name and the Complainant’s LAKES GAS trademark.

Complainant asserts that Respondent has no rights or legitimate interests in respect of the disputed domain name. Complainant asserts Respondent does not have any applications or registrations for LAKES GAS nor is it commonly known by the name “Lakes Gas.” Complainant further asserts Respondent does not use and is not preparing to use the disputed domain name in connection with a bona fide offering of goods or services, or making legitimate noncommercial or fair use of the domain name. Complainant contends the disputed domain name promotes or suggests a connection or relationship between Respondent and Complainant. Complainant asserts the unauthorized use of Complainant’s mark in the disputed domain name undermines a claim of bona fide use under the Policy. Complainant asserts that Respondent chose to register the disputed domain name because of its significance vis-à-vis Complainant’s LAKES GAS trademark and Complainant’s associated goodwill and reputation.

Complainant asserts that the disputed domain name was registered and is being used in bad faith. Complainant contends Respondent registered the disputed domain name for the purposes of selling or transferring the disputed domain name to Complainant, preventing Complainant from reflecting the name in the domain name, disrupting Complainant’s business, or attracting Internet users to the domain for commercial gain by creating a likelihood of confusion with Complainant’s trademark. Complainant asserts Respondent intentionally selected the disputed domain name, thereby preventing Complainant from registering the disputed domain name, diverting traffic, and disrupting Complainant’s business. Complainant asserts it formerly owned the disputed domain name but inadvertently allowed the registration to lapse, after which time Respondent was able to register the disputed domain name.

Accordingly, Complainant has requested that the disputed domain name be transferred. B. Respondent

Respondent asserts Complainant has failed to meet its burden of proof as set out in paragraph 4(a) of the Policy.

Respondent contends a legitimate interest in the disputed domain name. Respondent asserts it is in the business of buying and selling domain names with descriptive, geographic and generic terms, common phrases, and combinations thereof. Respondent asserts that it facilitates the sale of domain names on the secondary marketplace through Respondent’s website located at “www.domainm”. Respondent asserts the disputed domain name resolves to a landing page with the sale price, means to purchase the domain name, and a phone number to contact Respondent. Respondent asserts the disputed domain name has never been used to sell goods or services that are competitive with Complainant’s goods or services. Respondent asserts the business of reselling premium domain names is a bona fide offering of goods or services and an acceptable practice in the domain name industry. Respondent asserts the disputed domain name features a landing page that makes it clear to visitors that the disputed domain name is an item of inventory offered for sale. Respondent asserts the branding featured on the disputed domain name makes it clear there is no association with Complainant. Respondent further asserts Complainant’s mark is not unique but consists of a common geographic term paired with a generic term descriptive in Complainant’s business. Respondent further asserts there is no evidence supporting Complainant’s assertion of Respondent’s motivation for owning the disputed domain name. Respondent asserts Complainant contacted Respondent to inquire about purchasing the disputed domain name. Respondent asserts Complainant filed a trademark application for the LAKES GAS mark only after the disputed domain name was registered by Respondent. Respondent asserts the disputed domain name was registered in good faith in the ordinary course of its domain name reseller business.

Respondent asserts that the disputed domain name was not registered in bad faith nor has the disputed domain name ever been used in bad faith. Respondent asserts the disputed domain name was registered before Respondent became aware of Complainant’s rights in the LAKES GAS mark. Respondent asserts the disputed domain name was registered as part of the business model of creating or buying and selling domain names. Respondent asserts Complainant has not provided any evidence to support Complainant’s claim of bad faith. Respondent further asserts the disputed domain name was freely acquired eight years ago, while Complainant has sat on its rights. Respondent asserts Complainant cannot now complain of any harms suffered without offering any evidence thereof. Respondent further asserts Complainant does not offer any evidence that the mark was generally famous to the ordinary person. Respondent further asserts the offered price for the disputed domain name cannot be used to establish bad faith, and that Complainant’s disappointment with the purchase price is not an acceptable ground for abusing this process and taking the disputed domain name from Respondent.

Accordingly, Respondent has requested a denial of Complainant’s request and further requests a finding of reverse domain name hijacking. 6. Discussion and Findings

Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights,

(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name, and

(iii) the disputed domain name was registered and is being used in bad faith.

The Panel takes notice that Respondent filed its Response a day after the clearly established due date. It is within the panel’s sole discretion to consider an untimely response, and the Panel has duly considered the Response despite its delayed filing. Similarly, the Panel notes that it is within its discretion to request and consider additional written submissions by Complainant and Respondent, and the Panel has duly considered additional submissions by the Parties. A. Identical or Confusingly Similar

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