national arbitration forum

 

DECISION

 

Homer TLC, Inc. v. Above.com Domain Privacy

Claim Number: FA1304001494706

 

PARTIES

Complainant is Homer TLC, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is Above.com Domain Privacy (“Respondent”), Australia.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <bhomedepot.com>, <chomedepot.com>, <dhomedepot.com>, <fomedepot.com>, <haomedepot.com>, <hcmedepot.com>, <heomedepot.com>, <hlomedepot.com>, <hmomedepot.com>, <hnomedepot.com>, <ho0medepot.com>, <hojmedepot.com>, <hokmedepot.com>, <hom3depot.com>, <home3depot.com>, <homecdepot.com>, <homed3epot.com>, <homede3pot.com>, <homede4pot.com>, <homedeipot.com>, <homedelpot.com>, <homedep0ot.com>, <homedep9ot.com>, <homedepat.com>, <homedepkt.com>, <homedeplot.com>, <homedepo6t.com>, <homedepoh.com>, <homedepot5.com>, <homedepotc.com>, <homedepotf.com>, <homedepotg.com>, <homedeprot.com>, <homedeprt.com>, <homedetpot.com>, <homedfpot.com>, <homedsepot.com>, <homedtpot.com>, <homedwpot.com>, <homeeepot.com>, <homegepot.com>, <homemdepot.com>, <hometepot.com>, <homewdepot.com>, <homfdepot.com>, <homoedepot.com>, <hompedepot.com>, <homsdepot.com>, <homsedepot.com>, <hotmedepot.com>, <thehoedepot.com>, <thehomedeopot.com>, <thehomedeput.com>, <thehomepepot.com>, <thehometdepot.com>, <thehomwdepot.com>, <thomedepot.com>, <womedepot.com>, and <yhomedepot.com>, registered with Above.Com Pty Ltd.

 

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on April 12, 2013; the National Arbitration Forum received payment on April 12, 2013.

 

On April 18, 2013, Above.Com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <bhomedepot.com>, <chomedepot.com>, <dhomedepot.com>, <fomedepot.com>, <haomedepot.com>, <hcmedepot.com>, <heomedepot.com>, <hlomedepot.com>, <hmomedepot.com>, <hnomedepot.com>, <ho0medepot.com>, <hojmedepot.com>, <hokmedepot.com>, <hom3depot.com>, <home3depot.com>, <homecdepot.com>, <homed3epot.com>, <homede3pot.com>, <homede4pot.com>, <homedeipot.com>, <homedelpot.com>, <homedep0ot.com>, <homedep9ot.com>, <homedepat.com>, <homedepkt.com>, <homedeplot.com>, <homedepo6t.com>, <homedepoh.com>, <homedepot5.com>, <homedepotc.com>, <homedepotf.com>, <homedepotg.com>, <homedeprot.com>, <homedeprt.com>, <homedetpot.com>, <homedfpot.com>, <homedsepot.com>, <homedtpot.com>, <homedwpot.com>, <homeeepot.com>, <homegepot.com>, <homemdepot.com>, <hometepot.com>, <homewdepot.com>, <homfdepot.com>, <homoedepot.com>, <hompedepot.com>, <homsdepot.com>, <homsedepot.com>, <hotmedepot.com>, <thehoedepot.com>, <thehomedeopot.com>, <thehomedeput.com>, <thehomepepot.com>, <thehometdepot.com>, <thehomwdepot.com>, <thomedepot.com>, <womedepot.com>, and <yhomedepot.com> domain names are registered with Above.Com Pty Ltd. and that Respondent is the current registrant of the names. On Jul 23, 2013, Above.Com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <homedfpot.com>, <homedep0ot.com>, <homedepo6t.com>, <homedep9ot.com>, <homfdepot.com>, and <hompedepot.com> domain names, which had expired or were soon to expire, were renewed.  Above.Com Pty Ltd. has verified that Respondent is bound by the Above.Com Pty 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 July 26, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 15, 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@bhomedepot.com, postmaster@chomedepot.com, postmaster@dhomedepot.com, postmaster@fomedepot.com, postmaster@haomedepot.com, postmaster@hcmedepot.com, postmaster@heomedepot.com, postmaster@hlomedepot.com, postmaster@hmomedepot.com, postmaster@hnomedepot.com, postmaster@ho0medepot.com, postmaster@hojmedepot.com, postmaster@hokmedepot.com, postmaster@hom3depot.com, postmaster@home3depot.com, postmaster@homecdepot.com, postmaster@homed3epot.com, postmaster@homede3pot.com, postmaster@homede4pot.com, postmaster@homedeipot.com, postmaster@homedelpot.com, postmaster@homedep0ot.com, postmaster@homedep9ot.com, postmaster@homedepat.com, postmaster@homedepkt.com, postmaster@homedeplot.com, postmaster@homedepo6t.com, postmaster@homedepoh.com, postmaster@homedepot5.com, postmaster@homedepotc.com, postmaster@homedepotf.com, postmaster@homedepotg.com, postmaster@homedeprot.com, postmaster@homedeprt.com, postmaster@homedetpot.com, postmaster@homedfpot.com, postmaster@homedsepot.com, postmaster@homedtpot.com, postmaster@homedwpot.com, postmaster@homeeepot.com, postmaster@homegepot.com, postmaster@homemdepot.com, postmaster@hometepot.com, postmaster@homewdepot.com, postmaster@homfdepot.com, postmaster@homoedepot.com, postmaster@hompedepot.com, postmaster@homsdepot.com, postmaster@homsedepot.com, postmaster@hotmedepot.com, postmaster@thehoedepot.com, postmaster@thehomedeopot.com, postmaster@thehomedeput.com, postmaster@thehomepepot.com, postmaster@thehometdepot.com, postmaster@thehomwdepot.com, postmaster@thomedepot.com, postmaster@womedepot.com, and postmaster@yhomedepot.com.  Also on July 26, 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 August 23, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

 

1.    Respondent’s <bhomedepot.com>, <chomedepot.com>, <dhomedepot.com>, <fomedepot.com>, <haomedepot.com>, <hcmedepot.com>, <heomedepot.com>, <hlomedepot.com>, <hmomedepot.com>, <hnomedepot.com>, <ho0medepot.com>, <hojmedepot.com>, <hokmedepot.com>, <hom3depot.com>, <home3depot.com>, <homecdepot.com>, <homed3epot.com>, <homede3pot.com>, <homede4pot.com>, <homedeipot.com>, <homedelpot.com>, <homedep0ot.com>, <homedep9ot.com>, <homedepat.com>, <homedepkt.com>, <homedeplot.com>, <homedepo6t.com>, <homedepoh.com>, <homedepot5.com>, <homedepotc.com>, <homedepotf.com>, <homedepotg.com>, <homedeprot.com>, <homedeprt.com>, <homedetpot.com>, <homedfpot.com>, <homedsepot.com>, <homedtpot.com>, <homedwpot.com>, <homeeepot.com>, <homegepot.com>, <homemdepot.com>, <hometepot.com>, <homewdepot.com>, <homfdepot.com>, <homoedepot.com>, <hompedepot.com>, <homsdepot.com>, <homsedepot.com>, <hotmedepot.com>, <thehoedepot.com>, <thehomedeopot.com>, <thehomedeput.com>, <thehomepepot.com>, <thehometdepot.com>, <thehomwdepot.com>, <thomedepot.com>, <womedepot.com>, and <yhomedepot.com> domain names are confusingly similar to Complainant’s HOME DEPOT and THE HOME DEPOT marks.

 

2.    Respondent does not have any rights or legitimate interests in the <bhomedepot.com>, <chomedepot.com>, <dhomedepot.com>, <fomedepot.com>, <haomedepot.com>, <hcmedepot.com>, <heomedepot.com>, <hlomedepot.com>, <hmomedepot.com>, <hnomedepot.com>, <ho0medepot.com>, <hojmedepot.com>, <hokmedepot.com>, <hom3depot.com>, <home3depot.com>, <homecdepot.com>, <homed3epot.com>, <homede3pot.com>, <homede4pot.com>, <homedeipot.com>, <homedelpot.com>, <homedep0ot.com>, <homedep9ot.com>, <homedepat.com>, <homedepkt.com>, <homedeplot.com>, <homedepo6t.com>, <homedepoh.com>, <homedepot5.com>, <homedepotc.com>, <homedepotf.com>, <homedepotg.com>, <homedeprot.com>, <homedeprt.com>, <homedetpot.com>, <homedfpot.com>, <homedsepot.com>, <homedtpot.com>, <homedwpot.com>, <homeeepot.com>, <homegepot.com>, <homemdepot.com>, <hometepot.com>, <homewdepot.com>, <homfdepot.com>, <homoedepot.com>, <hompedepot.com>, <homsdepot.com>, <homsedepot.com>, <hotmedepot.com>, <thehoedepot.com>, <thehomedeopot.com>, <thehomedeput.com>, <thehomepepot.com>, <thehometdepot.com>, <thehomwdepot.com>, <thomedepot.com>, <womedepot.com>, and <yhomedepot.com> domain names.

 

3.    Respondent registered and used the <bhomedepot.com>, <chomedepot.com>, <dhomedepot.com>, <fomedepot.com>, <haomedepot.com>, <hcmedepot.com>, <heomedepot.com>, <hlomedepot.com>, <hmomedepot.com>, <hnomedepot.com>, <ho0medepot.com>, <hojmedepot.com>, <hokmedepot.com>, <hom3depot.com>, <home3depot.com>, <homecdepot.com>, <homed3epot.com>, <homede3pot.com>, <homede4pot.com>, <homedeipot.com>, <homedelpot.com>, <homedep0ot.com>, <homedep9ot.com>, <homedepat.com>, <homedepkt.com>, <homedeplot.com>, <homedepo6t.com>, <homedepoh.com>, <homedepot5.com>, <homedepotc.com>, <homedepotf.com>, <homedepotg.com>, <homedeprot.com>, <homedeprt.com>, <homedetpot.com>, <homedfpot.com>, <homedsepot.com>, <homedtpot.com>, <homedwpot.com>, <homeeepot.com>, <homegepot.com>, <homemdepot.com>, <hometepot.com>, <homewdepot.com>, <homfdepot.com>, <homoedepot.com>, <hompedepot.com>, <homsdepot.com>, <homsedepot.com>, <hotmedepot.com>, <thehoedepot.com>, <thehomedeopot.com>, <thehomedeput.com>, <thehomepepot.com>, <thehometdepot.com>, <thehomwdepot.com>, <thomedepot.com>, <womedepot.com>, and <yhomedepot.com> domain names in bad faith.

 

B.  Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant’s THE HOME DEPOT mark is registered with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,188,191 registered Jan. 26, 1982), as is its HOME DEPOT mark (Reg. No. 2,314,081 registered Feb. 1, 2000).

 

Respondent registered all of the above disputed domain names on or before November 8, 2006, and uses them to resolve to websites featuring generic links to Complainant’s and Complainant’s competitors’ websites.

 

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

 

The Panel finds that Complainant has rights in both its HOME DEPOT and THE HOME DEPOT marks under Policy ¶ 4(a)(i) through its registrations of the marks with the USPTO.  Previous panels have found that the registration of a mark, regardless of the location of the parties, is evidence of having rights in that mark under Policy ¶ 4(a)(i).  See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its federal trademark registrations); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).

 

Respondent’s <thehoedepot.com>, <thehomedeopot.com>, <thehomedeput.com>, <thehomepepot.com>, <thehometdepot.com>, <thehomwdepot.com>, and <thomedepot.com> domain names are confusingly similar to Complainant’s THE HOME DEPOT mark, since they incorporate Complainant’s mark and delete the spaces between words, add a gTLD, and change one letter of the mark.  Previous panels have found that deleting spaces, adding a gTLD, and single-letter alterations do not negate confusing similarity.  See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)); see also Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive).  The Panel finds that the <thehoedepot.com>, <thehomedeopot.com>, <thehomedeput.com>, <thehomepepot.com>, <thehometdepot.com>, <thehomwdepot.com>, and <thomedepot.com> domain names are confusingly similar to Complainant’s THE HOME DEPOT mark.

 

Respondent’s <bhomedepot.com>, <chomedepot.com>, <dhomedepot.com>, <fomedepot.com>, <haomedepot.com>, <hcmedepot.com>, <heomedepot.com>, <hlomedepot.com>, <hmomedepot.com>, <hnomedepot.com>, <ho0medepot.com>, <hojmedepot.com>, <hokmedepot.com>, <hom3depot.com>, <home3depot.com>, <homecdepot.com>, <homed3epot.com>, <homede3pot.com>, <homede4pot.com>, <homedeipot.com>, <homedelpot.com>, <homedep0ot.com>, <homedep9ot.com>, <homedepat.com>, <homedepkt.com>, <homedeplot.com>, <homedepo6t.com>, <homedepoh.com>, <homedepot5.com>, <homedepotc.com>, <homedepotf.com>, <homedepotg.com>, <homedeprot.com>, <homedeprt.com>, <homedetpot.com>, <homedfpot.com>, <homedsepot.com>, <homedtpot.com>, <homedwpot.com>, <homeeepot.com>, <homegepot.com>, <homemdepot.com>, <hometepot.com>, <homewdepot.com>, <homfdepot.com>, <homoedepot.com>, <hompedepot.com>, <homsdepot.com>, <homsedepot.com>, <hotmedepot.com>, <womedepot.com>, and <yhomedepot.com> domain names also add a gTLD, delete a space, and misspell Complainant’s mark by a single letter.  These changes also do not distinguish the above domain names from Complainant’s HOME DEPOT mark.  See Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)); see also Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive).  The Panel finds that the <bhomedepot.com>, <chomedepot.com>, <dhomedepot.com>, <fomedepot.com>, <haomedepot.com>, <hcmedepot.com>, <heomedepot.com>, <hlomedepot.com>, <hmomedepot.com>, <hnomedepot.com>, <ho0medepot.com>, <hojmedepot.com>, <hokmedepot.com>, <hom3depot.com>, <home3depot.com>, <homecdepot.com>, <homed3epot.com>, <homede3pot.com>, <homede4pot.com>, <homedeipot.com>, <homedelpot.com>, <homedep0ot.com>, <homedep9ot.com>, <homedepat.com>, <homedepkt.com>, <homedeplot.com>, <homedepo6t.com>, <homedepoh.com>, <homedepot5.com>, <homedepotc.com>, <homedepotf.com>, <homedepotg.com>, <homedeprot.com>, <homedeprt.com>, <homedetpot.com>, <homedfpot.com>, <homedsepot.com>, <homedtpot.com>, <homedwpot.com>, <homeeepot.com>, <homegepot.com>, <homemdepot.com>, <hometepot.com>, <homewdepot.com>, <homfdepot.com>, <homoedepot.com>, <hompedepot.com>, <homsdepot.com>, <homsedepot.com>, <hotmedepot.com>, <womedepot.com>, and <yhomedepot.com> domain names are confusingly similar to Complainant’s HOME DEPOT mark.

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

 

Rights or Legitimate Interests

 

Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).

 

Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain names.  Complainant argues that Respondent is not commonly known by the disputed domain names, stating that the WHOIS records list “Above.com Domain Privacy” as the registrant.  Complainant states that Respondent has not been given permission to use the HOME DEPOT and THE HOME DEPOT marks.  Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).  See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).

 

Complainant asserts that the use of the disputed domain names is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. Complainant claims that the disputed domain names resolve to websites featuring generic links to Complainant’s and Complainant’s competitors’ websites, and that, presumably, Respondent received pay-per-click fees from these websites.  In ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007), the panel held that the display of various competitive links is evidence of a lack of rights and legitimate interests.  Therefore, the Panel finds that Respondent’s use of the disputed domain names is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. 

 

Additionally, Complainant contends that the disputed domain names are used to operate phishing schemes.  Complainant notes that when visiting one of the disputed domain names, a pop-up window notifies the user that he is a winner, and after clicking OK, another pop-up appears where the user can select a prize and then enter personal information to obtain the prize.  Panels have found that the fraudulent acquisition of personal information is evidence of a lack of rights and legitimate interests.  See  Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use).  Therefore, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Respondent’s advertised pay-per-click links displayed on the websites resolving from the disputed domain names promote products that compete with Complainant, diverting customers away from Complainant and to Respondent’s own website for Respondent’s benefit.  In Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007), the panel held that displaying links to the complainant’s and the complainant’s competitors’ websites constituted a disruption of the complainant’s business.  Thus, the Panel finds that Respondent’s registration and use of the disputed domain names is disruptive and thus done in bad faith pursuant to Policy ¶ 4(b)(iii).

 

Respondent uses the disputed domain names to generate revenue by operating a click-through website, taking advantage of Complainant’s well-known marks for a competitive advantage and for commercial gain.  This constitutes bad faith under Policy ¶ 4(b)(iv).  See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names).  The Panel thus finds that Respondent registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv).

 

Respondent’s attempt to phish personal information is likewise demonstrative of bad faith.  The panel in Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006), held that the attempt to fraudulently acquire personal information is evidence of bad faith.  The Panel finds that Respondent’s operation of phishing scheme via the disputed domain names is evidence that the domain names were registered and are being used in bad faith under Policy ¶ 4(a)(iii).

 

Respondent’s registration of the disputed domain names is also a classic example of typosquatting, where the disputed domain names are meant to take advantage of Internet users’ typographical errors when they search for Complainant. Therefore, the Panel finds that Respondent registered the disputed domain names in bad faith pursuant to Policy ¶ 4(a)(iii).  See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.).

 

Lastly, Complainant notes that none of the disputed domain names were registered prior to November 8, 2006, well after Complainant began using its marks.  Complainant claims that Respondent also redirects users to Complainant’s own website through Complainant’s affiliate program. Complainant argues that the Panel should infer that Respondent was aware of Complainant’s rights in the marks at the time the disputed domain names were registered.  The Panel so infers and finds that Respondent had actual knowledge of Complainant's mark and rights and therefore registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii).  See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <bhomedepot.com>, <chomedepot.com>, <dhomedepot.com>, <fomedepot.com>, <haomedepot.com>, <hcmedepot.com>, <heomedepot.com>, <hlomedepot.com>, <hmomedepot.com>, <hnomedepot.com>, <ho0medepot.com>, <hojmedepot.com>, <hokmedepot.com>, <hom3depot.com>, <home3depot.com>, <homecdepot.com>, <homed3epot.com>, <homede3pot.com>, <homede4pot.com>, <homedeipot.com>, <homedelpot.com>, <homedep0ot.com>, <homedep9ot.com>, <homedepat.com>, <homedepkt.com>, <homedeplot.com>, <homedepo6t.com>, <homedepoh.com>, <homedepot5.com>, <homedepotc.com>, <homedepotf.com>, <homedepotg.com>, <homedeprot.com>, <homedeprt.com>, <homedetpot.com>, <homedfpot.com>, <homedsepot.com>, <homedtpot.com>, <homedwpot.com>, <homeeepot.com>, <homegepot.com>, <homemdepot.com>, <hometepot.com>, <homewdepot.com>, <homfdepot.com>, <homoedepot.com>, <hompedepot.com>, <homsdepot.com>, <homsedepot.com>, <hotmedepot.com>, <thehoedepot.com>, <thehomedeopot.com>, <thehomedeput.com>, <thehomepepot.com>, <thehometdepot.com>, <thehomwdepot.com>, <thomedepot.com>, <womedepot.com>, and <yhomedepot.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated:  September 3, 2013

 

 

 

 

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