Homer TLC, Inc. v. For Customer # 222553 Domain Contact is Private / For Customer # 222675 Domain Contact is Private
Claim Number: FA1303001488548
Complainant is Homer TLC, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is For Customer # 222553 Domain Contact is Private / For Customer # 222675 Domain Contact is Private (“Respondent”).
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <homedpeot.com> and <homeepot.com>, registered with Gal Communication (CommuniGal) Ltd.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 5, 2013; the National Arbitration Forum received payment on March 5, 2013.
On March 18, 2013, Gal Communication (CommuniGal) Ltd. confirmed by e-mail to the National Arbitration Forum that the <homedpeot.com> and <homeepot.com> domain names are registered with Gal Communication (CommuniGal) Ltd. and that Respondent is the current registrant of the names. Gal Communication (CommuniGal) Ltd. has verified that Respondent is bound by the Gal Communication (CommuniGal) Ltd. 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 March 19, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 8, 2013 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@homedpeot.com and postmaster@homeepot.com. Also on March 19, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 11, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant
i. Respondent has not been commonly known by the disputed domain names.
ii. Respondent is using the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business.
i. Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant.
ii. Respondent has registered and used the disputed domain names to attract and mislead consumers for its own profit.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Homer TLC, Inc. who list its address as Atlanta, GA, USA. Complainant owns USA registrations for the marks THE HOME DEPOT and HOME DEPOT for various classes of goods and services associated with the home improvement industry. Complainant owns stores throughout the USA and also operates in cyberspace through the company’s website <homedepot.com> which launched in 1992.
Respondent is For Customer #222553 Domain Contact is Private and For Customer #222675 Domain Contact is Private. Respondent’s address is noted as private. Respondent’s registrar’s address is listed as Netanya, Israel.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant, Homer TLC, Inc. dba Home Depot, argues that it revolutionized the home improvement industry by bringing the know-how and the tools to the consumer and saving them money. Complainant contends that it is the owner of trademark registrations with the USPTO for THE HOME DEPOT mark (e.g. Reg. No. 1,188,191, registered January 26, 1982) and for the HOME DEPOT mark (Reg. No. 2,314,081, registered February 1, 2000). See Complainant’s Exhibit E. The Panel finds that Complainant’s registration of the HOME DEPOT mark with the USPTO demonstrates its rights in the mark pursuant to Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Complainant asserts that Respondent’s <homedpeot.com> and <homeepot.com> domain names are confusingly similar to Complainant’s marks because they differ by only a single character. The Panel noted that Respondent transposes the letters “e” and “p” in Complainant’s HOME DEPOT mark in the <homedpeot.com> disputed domain name. The Panel finds that the transposition of letters in a domain name does not create a distinct mark capable of overcoming a claim of confusing similarity under Policy ¶ 4(a)(i). See Delta Corporate Identity, Inc. v. SearchTerms, FA 590678 (Nat. Arb. Forum Dec. 14, 2005) (concluding that the <dleta.com> domain name was confusingly similar to the complainant’s DELTA mark). The Panel notes that Respondent removes the letter “d” from Complainant’s HOME DEPOT mark in the <homeepot.com> domain name but finds that the removal of a letter in a domain name does not distinguish Respondent’s domain name from Complainant’s mark under Policy ¶ 4(a)(i). See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005) (holding that the <pfzer.com> domain name was confusingly similar to the complainant’s PFIZER mark, as the respondent simply omitted the letter “i”). The Panel also notes that Respondent adds the generic top-level domain (“gTLD”) “.com” to the disputed domain names. The Panel finds that the addition of a gTLD is irrelevant to a Policy ¶ 4(a)(i) confusingly similar analysis. See Starwood Capital Grp. Global LLC v. Resort Realty, FA 1043061 (Nat. Arb. Forum Sept. 6, 2007) (“Furthermore, the addition of the generic top-level domain ‘.com’ does nothing to eliminate the confusing similarity, as a top-level domain is a requirement for all domain names.”). The Panel finds that Respondent’s <homedpeot.com> and <homeepot.com> domain names are confusingly similar to Complainant’s HOME DEPOT mark pursuant to Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant asserts that Respondent has not been commonly known by the disputed domain names. The Panel notes that the WHOIS information identifies “For Customer # 222553 Domain Contact is Private / For Customer # 222675 Domain Contact is Private” as the registrant of the disputed domain names. See Complainant’s Exhibit I. Complainant argues that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant claims that it has not given Respondent permission to use Complainant’s mark in a domain name. The Panel notes that Respondent does not provide evidence showing that it is known by the disputed domain names. The Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. 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).
Complainant argues that Respondent is using the disputed domain names to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. The Panel notes that Respondent’s disputed domain names resolve to a web directory website providing Complainant’s link and competing links such as “Home Depot Official Site,” “Hot Water Heater Problems,” “70% Off Flooring Sites,” and others. See Complainant’s Exhibit H. The Panel finds that Respondent’s use of the disputed domain names to provide competing hyperlinks is not a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant argues that Respondent’s advertised pay-per-click links displayed on the resolving websites promotes products that compete with Complainant. The Panel notes that Respondent’s disputed domain names resolve to a web directory website providing competing links such as “Home Depot Official Site,” “Hot Water Heater Problems,” “70% Off Flooring Sites,” and others. See Complainant’s Exhibit H. The Panel finds that Respondent’s use of the disputed domain name to offer competing hyperlinks disrupts Complainant’s business, and that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”).
Complainant asserts that Respondent has registered and used the disputed domain name to attract and mislead consumers for its own profit. Complainant claims that Respondent set up a “click through” website for which it likely receives revenue for each misdirected Internet user. The Panel again notes that Respondent’s disputed domain names resolve to a web directory website providing competing links such as “Home Depot Official Site,” “Hot Water Heater Problems,” “70% Off Flooring Sites,” and others. See Complainant’s Exhibit H. The Panel finds that Respondent’s use of the disputed domain name to offer competing hyperlinks attracts Internet users for Respondent’s own commercial gain, showing bad faith use and registration pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <homedpeot.com> and <homeepot.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: April 22, 2013
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