Houzz Inc. v. constantin asavinei / Arhitectural Interior Design
Claim Number: FA1909001860814
Complainant is Houzz Inc. (“Complainant”), represented by Anne H. Peck of 285 Hamilton Avenue, California, USA. Respondent is constantin asavinei / Arhitectural Interior Design (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <houzz.pro>, registered with NameCheap, Inc..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 5, 2019; the Forum received payment on September 5, 2019.
On September 5, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <houzz.pro> 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 September 11, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 1, 2019 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@houzz.pro. Also on September 11, 2019, 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.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On October 2, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant is a leading online platform for home remodeling architecture, interior design and decorating, landscaping, and home improvement.
Complainant has rights in the HOUZZ mark through its trademark registrations around the world, including with the United States Patent and Trademark Office (“USPTO”), the Canadian Intellectual Property Office (“CIPO”) and the European Union Intellectual Property Office (“EUIPO”).
Respondent’s <houzz.pro> domain name is nearly identical to Complainant’s HOUZZ mark as it fully incorporates the mark along with a “.pro” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <houzz.pro> domain name. Respondent is not authorized or licensed to use Complainant’s HOUZZ mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the at-issue domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent’s domain name redirects to a parked webpage. Furthermore, Respondent is believed to use the domain name’s website in connection with a phishing scheme and/or malware.
Respondent registered and uses the <houzz.pro> domain name in bad faith. Respondent may attempt to distribute malware through the at-issue domain name. Furthermore, Respondent had actual and constructive knowledge of Complainant’s rights in the HOUZZ mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the HOUZZ mark as demonstrated by its registration of such mark with any one of multiple national registrars.
Complainant’s rights in the HOUZZ mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent is not authorized to use Complainant’s trademark.
Respondent’s website addresses a blank page and has been listed unfavorably by several malware detection sites.
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.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of national trademark registrations for the HOUZZ mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(I). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”).
Additionally, the at-issue domain name consists of Complainant’s entire HOUZZ trademark followed the top level domain name “.pro.” The differences between the at-issue <houzz.pro> domain name and Complainant’s HOUZZ trademark is insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i), Respondent’s <houzz.pro> domain name is identical to Complainant’s HOUZZ trademark. See Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”); see also, Reebok Int’l Ltd. v. Ohno, FA 511463 (Forum Aug. 23, 2005) (holding that the <reebok.net> domain name was identical to the complainant’s REEBOK mark because it fully incorporates the mark and merely adds a generic top-level domain).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the <houzz.pro> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name ultimately identifies its registrant as “constantin asavinei / Arhitectural Interior Design.” The record before the Panel contains no evidence that otherwise tends to show that Respondent is commonly known by the <houzz.pro> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Furthermore, the record before the Panel shows that Respondent is not actively using the <houzz.pro> domain name and that several malware assessment facilities have listed <houzz.pro> unfavorably. Respondent’s prior inactive use of the domain name and suggestion that domain name is likely involved in distributing malware constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a non-commercial or fair use under Policy ¶ 4(c)(iii). see also Hilton Hotels Corp. v. Padonack, FA 1043687 (Forum Sept. 6, 2007) (holding that the use of a disputed domain name to host a website that attempted to download a virus when accessed did not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Respondent’s <houzz.pro> domain name was registered and used in bad faith. As discussed below without limitation, circumstance are present which compel the Panel to conclude that Respondent acted in bad faith regarding the at-issue domain name pursuant to paragraph 4(a)(iii) of the Policy.
First and as touched on above regarding rights and legitimate interests, Respondent’s domain name is likely involved in the distributing malware to third parties. Respondent’s use of the at-issue domain name to attempt to infect the computing devices of internet users with malware shows Respondent’s bad faith registration and use of the <houzz.pro> domain name. See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (“In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.”).
Additionally, Respondent registered <houzz.pro> knowing that Complainant had trademark rights in the HOUZZ trademark. Respondent’s prior knowledge is evident given the mark’s notoriety and unique spelling. It follows that Respondent intentionally registered the at-issue domain name so that it might improperly exploit the domain name’s trademark value rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <houzz.pro> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <houzz.pro> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: October 2, 2019
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