Homer TLC, Inc. v. Host for You / Vladimir Snezk
Claim Number: FA1303001491785
Complainant is Homer TLC, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Host for You / Vladimir Snezk (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homedepoy.com>, registered with ENOM, INC.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 26, 2013; the National Arbitration Forum received payment on March 26, 2013.
On March 27, 2013, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <homedepoy.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, 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 March 27, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 16, 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@homedepoy.com. Also on March 27, 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 24, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <homedepoy.com> domain name is confusingly similar to Complainant’s THE HOME DEPOT mark.
2. Respondent does not have any rights or legitimate interests in the <homedepoy.com> domain name.
3. Respondent registered and uses the <homedepoy.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns multiple federal trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its THE HOME DEPOT mark (e.g., Reg. No. 1,188,191 registered Jan. 26, 1982).
Respondent registered the <homedepoy.com> domain name on November 15, 2000, and uses it to divert Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant.
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 has established rights in its THE HOME DEPOT mark based on its registrations of the mark with the USPTO. Previous panels have found that a complainant’s registration of a mark with the USPTO is sufficient to confer rights in the mark under Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”). The Panel notes that past panels have also found that a complainant need not register its mark in the country of the respondent to demonstrate rights in the mark. See 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 and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Therefore, the Panel finds that Complainant has established rights under Policy ¶ 4(a)(i) in the THE HOME DEPOT mark.
Respondent’s <homedepoy.com> domain name is confusingly similar to Complainant’s THE HOME DEPOT mark. The addition of the gTLD “.com,” and deletion of the space between the words in Complainant’s mark, are irrelevant to a Policy ¶ 4(a)(i) confusing similarity comparison. See Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Nat. Arb. Forum Dec. 31, 2007) (finding that “spaces are impermissible and a generic top-level domain, such as ‘.com,’ ‘.net,’ ‘.biz,’ or ‘.org,’ is required in domain names. Therefore, the panel finds that the disputed domain name [<americangenerallifeinsurance.com>] is confusingly similar to the complainant’s [AMERICAN GENERAL] mark.”). Respondent’s omission of the word “the” from Complainant’s mark does not distinguish the disputed domain. See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (holding that “the Domain Name is confusingly similar to Complainant’s ‘TESCO PERSONAL FINANCE’ mark in that it merely omits the descriptive term ‘personal.’”). Finally, the addition of the letter “y” also does nothing to create a distinct mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). Thus, the Panel finds that the <homedepoy.com> mark is confusingly similar to Complainant’s THE HOME DEPOT mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
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 argues that Respondent has not been commonly known by the <homedepoy.com> domain name and has therefore not demonstrated rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii). The WHOIS record identifies “Host for You / Vladimir Snezk” as the registrant of the <homedepoy.com> domain name. Complainant states that it is not affiliated with Respondent and has not authorized Respondent to use its THE HOME DEPOT mark. Previous panels have found nominally unsupportive WHOIS information and a lack of authorization to be strong evidence that a respondent is not commonly known by a disputed domain name. See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name). Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name and has not established rights or legitimate interests pursuant to Policy ¶ 4(c)(ii).
Complainant asserts that Respondent is using the disputed domain name to redirect users to a web page featuring generic links to third-party websites, some of which compete with Complainant’s business (including “Mr. Handyman” and “Home Repair”). Complainant claims that this demonstrates that Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use, pursuant to Policy ¶¶ 4(c)(i) and 4(c)(iii). The Panel agrees and finds that Respondent has not demonstrated rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that previous UDRP decisions against Respondent show that it has engaged in a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Mattel, Inc. v. Host for You / Vladimir Snezko, FA 1432364 (Nat. Arb. Forum May 4, 2012); see also Expedia Inc. v. Host for You c/o Vladimir Snezko, FA 1191811 (Nat. Arb. Forum July 7, 2008). The Panel agrees and finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(ii). See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations).
Respondent uses the <homedepoy.com> domain name for a “click through” website, containing links that promote products that compete with Complainant’s business, disrupting Complainant’s business. This constitutes 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).”). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii).
Respondent is intentionally using a domain name confusingly similar to Complainant’s THE HOME DEPOT mark to divert Internet users to its website, no doubt profiting when users click on the competing links. This demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Respondent also engages in intentional misspelling, or typosquatting, further evidence of bad faith registration and use. See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <homedepoy.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 1, 2013
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