Homer TLC, Inc. v. Domain Manager
Claim Number: FA1406001563234
Complainant is Homer TLC, Inc. (“Complainant”), represented by Justin S. Haddock of Fulbright & Jaworski LLP, Texas, USA. Respondent is Domain Manager (“Respondent”), Oregon, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homecaredepot.com>, registered with Udamain.com LLC.
The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 5, 2014; the National Arbitration Forum received payment on June 5, 2014.
On June 17, 2014, after multiple attempts to contact the Registrar, Udamain.com LLC, the National Arbitration Forum notified ICANN of the registrar’s non-response and notified the parties that the Forum was proceeding without verification per instructions from ICANN.
On June 19, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 9, 2014 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@homecaredepot.com. Also on June 19, 2014, 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.
On June 26, 2014, Udamain.com LLC confirmed by e-mail to the National Arbitration Forum that the <homecaredepot.com> domain name is registered with Udamain.com LLC and that Respondent is the current registrant of the name. Udamain.com LLC has verified that Respondent is bound by the Udamain.com LLC 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”).
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 16, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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
Homer TLC, Inc. is the owner of the famous HOME DEPOT and THE HOME DEPOT trademarks. Homer TLC, Inc., through its predecessor in interest and licensees, including The Home Depot (collectively “Home Depot”), commenced use of the trademarks HOME DEPOT and THE HOME DEPOT (hereinafter the “HOME DEPOT Marks”) at least as early as 1979 in connection with home improvement retail store services and related goods and services. Since that time, Home Depot has continuously used the HOME DEPOT Marks in commerce in the United States and abroad.
Today, Home Depot is the world’s largest home improvement specialty retailer and the fourth largest retailer in the U.S. with annual worldwide sales of more than $66 billion. Home Depot has more than 2,200 retail stores in the U.S., including stores in all 50 states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands. Home Depot also has retail stores in ten Canadian provinces, Mexico and China.
In addition to its extensive common law rights, Home Depot owns numerous U.S. federal registrations for its HOME DEPOT Marks, including, among others, the following: THE HOME DEPOT (Reg. Nos. 1,431,636; 2,825,232; 4,185,403; 4,212,770; 4,216,628; 4,216,629; 4,220,687; 4,220,741; 4,252,553 and 4,438,588), THE HOME DEPOT & Design (Reg. Nos. 1,297,161; 1,835,705; 2,391,201 and 4,256,235), THE HOME DEPOT (Stylized) (Reg. No. 4,300,027), HOME DEPOT (Reg. No. 2,314,081), THE HOME DEPOT KIDS WORKSHOP (Reg. No. 2,316,186), THE HOME DEPOT FOUNDATION. (Reg. No. 3,650,106), HOME DEPOT FUEL (Reg. No. 3,722,317), ECO OPTIONS THE HOME DEPOT & Design (Reg. No. 3,671,105), GET IT INSTALLED THE HOME DEPOT & Design (Reg. No. 3,885,173) and THE HOME DEPOT PRO XTRA & Design (Reg. No. 4,392,280). These registrations are valid, subsisting and enforceable. The HOME DEPOT Marks are distinctive, well-known and famous marks.
FACTUAL AND LEGAL GROUNDS
This Complaint is based on the following factual and legal grounds: ICANN Rule 3(b)(ix).
[a.] The homecaredepot.com domain name is identical to the HOME DEPOT Marks in which Home Depot has trademark rights worldwide.
[i] Home Depot has rights in its trademarks.
The HOME DEPOT Marks have been used in commerce in connection with, among other things, home improvement retail store services since at least as early as 1979. In addition, Home Depot has registered and uses the domain name homedepot.com in connection with the advertising of its retail store services on the Internet. Home Depot first registered the homedepot.com domain name in 1992 and has continuously maintained the registration for homedepot.com since that time.
The HOME DEPOT Marks have become highly valuable assets of Home Depot, representing substantial goodwill. The value of these assets has been cultivated as a result of Home Depot’s continuous and exclusive use of the marks for many years, and because of Home Depot’s efforts to promote the mark through the expenditure of substantial sums and careful control of the public perception of both the nature and quality of the goods and services provided in connection with the marks.
It is well established under the Policy that Home Depot’s registration of a mark with federal authority establishes a prima facie case of Home Depot’s rights. See, e.g., Delta Corporate Identity, Inc. and Delta Air Lines, Inc. v. dltaairlines.com and deltaaairlines.com c/o Hanna El Hinn, FA548217 (NAF Oct. 12, 2005), citing Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) (“Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.”), and Innomed Techs., Inc. v. DRP Servs., FA221171 (NAF Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes complainant's rights in the mark”).
[ii] The homecaredepot.com domain name is identical to the HOME DEPOT Marks.
Home Depot has used its HOME DEPOT Marks in commerce since at least 1979. As noted above, such long-standing and continuous use gives Home Depot exclusive rights in the HOME DEPOT Marks. ICANN panels have found that, where, as in this case, a domain name incorporates a distinctive mark in its entirety, it creates sufficient similarity between the mark and the domain name to render it confusingly similar. See Lowen Corp. v. Henry Chan, D2004-4030 (WIPO August 5, 2004) (finding that the domain name lowensigns.com is confusingly similar to LOWEN).
Furthermore, the addition of the common or generic term “care” to Home Depot’s famous HOME DEPOT trademark does not negate the confusing similarity between homecaredepot.com and the HOME DEPOT Marks under Policy ¶4(1)(i). See Exxon Mobil Corporation v. mga enterprises limited, FA0907001273445 (NAF Aug. 26, 2009) (finding that the addition of the terms “travel” and “club,” which have an obvious relationship to Complainant’s [Exxon’s] business, to Complainant’s mark in the disputed domain name <exxontravelclub.com> create a confusing similarity between the disputed domain name and the registered mark); Homer TLC, Inc. v. Whois Guard, FA619597 (NAF Feb. 14, 2006) (finding that the addition of common words to Complainant’s registered mark did not negate the confusing similarity). Moreover, the addition of a generic top-level domain, such as “.com,” is irrelevant in determining similarity of Respondent’s homecaredepot.com domain to Home Depot’s HOME DEPOT Marks. See, e.g., Delta Corporate Identity, Inc. and Delta Air Lines, Inc, citing Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) (“[t]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants”); See also, Thomas B. Hudson v. Ted Machi & Associates, FA133759 (NAF Jan. 21, 2003).
In this case, the homecaredepot.com domain name is identical to and incorporates in its entirety the HOME DEPOT Marks. The domain name differs from the HOME DEPOT Marks only by the additions of the generic word “care” and the top-level domain, .com. These minor differences are insufficient to distinguish the homecaredepot.com domain name from the HOME DEPOT Marks.
[b.] Respondent Has No Rights or Legitimate Interests in the Domain Name.
Because Home Depot has made a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have rights or legitimate interests in the Domain Name. See, e.g., Tejon Ranchcorp and Tejon Ranch Co. v. J & L Enterprises, FA524749 (NAF September 20, 2005), citing Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (where complainant has asserted that respondent has no rights or legitimate interests with respect to domain name, respondent must come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent.”), and G.D. Searle v. Martin Mktg., FA118277 (NAF Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent”).
Moreover, Respondent must show it has rights or legitimate interest in respect of the domain name at issue by “concrete evidence.” See Kate Spade, LLC v. Darmstadter Designs, No. D2001-1384 (WIPO Jan. 3, 2002) citing UDRP Policy 4(c). “Concrete evidence” requires more than personal assertions; it requires documents or third party declarations in support of such assertions. Id. A failure to produce such concrete evidence entitles a panel to conclude that the respondent has no such rights or legitimate interest. Id.
From the evidence discussed below, it is clear that Respondent has no rights or legitimate interest in the homecaredepot.com domain name.
[i] Respondent has no relationship with Home Depot.
Respondent has no relationship, affiliation, connection, endorsement or association with Home Depot. Respondent has never requested or received any authorization, permission or license from Home Depot to use the HOME DEPOT Marks in any way.
[ii] Respondent has never been commonly known by the domain name homecaredepot.com or by the HOME DEPOT Marks and has never acquired any trademark rights in the same.
There is no evidence in the WHOIS information to suggest that Respondent is known by the homecaredepot.com domain name. Indeed, given Home Depot’s long-time and extensive world-wide rights in the HOME DEPOT Marks in connection with home improvement retail stores and related goods and services, Respondent could not have rights in the HOME DEPOT Marks unless Home Depot granted them. However, that has not occurred.
[iii] Respondent has not used the domain name in good faith and in connection with a bona fide offering of goods or services.
The website that currently resolves from homecaredepot.com does not purport to offer any actual goods or services, nor does it provide any legitimate information or substantive content. Rather, the website at the disputed domain name contains a search bar and sponsored, click-through advertisements redirecting Internet users to third party websites, including the websites of some of Home Depot’s competitors.
Upon information and belief, Respondent receives compensation every time a search is entered on this website or one of the links for these sponsored advertisements is clicked by an Internet user. ICANN panels have held that there only needs to be commercial gain sought by some party for the use to be commercial. See Focus Do It All Group v. Athanasios Sermbizis, D2000-0923 (WIPO October 6, 2000)(finding that “[I]t is enough that commercial gain is being sought for someone” for a use to be commercial). Respondent’s use cannot be characterized as fair use. See id. (finding that Respondent’s use “could in no way be characterized as fair, because consumers would think that they were visiting a site of the Complainants until they found that instead they were in a directory which would do the Complainants potential harm”).
Respondent’s use for commercial gain of a domain name that is identical to the HOME DEPOT Marks to direct Internet users interested in Complainant’s goods and services to websites offering similar goods and services in competition with Complainant is not a legitimate noncommercial or fair use of the domain name. See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (NAF Feb. 27, 2001) (respondent's commercial use of the domain name to confuse and divert Internet traffic is not a legitimate use of the domain name); see also State Farm Mut. Auto. Ins. Co. v. LaFaive, FA 95407 (NAF Sept. 27, 2000) (“[U]nauthorized providing of information and services under a mark owned by a third party cannot be said to be the bona fide offering of goods or services.”) Furthermore, such use is not legitimate because it diverts Complainant’s customers and potential customers to Respondent’s website and to the websites of Complainant’s competitors. See Athanasios Sermbizis, D2000-0923 (finding that Respondent’s domain name which linked visitors to a directory of regional competitors was not a legitimate use). See also Homer, TLC Inc. v. Kang, FA573872 (NAF Nov. 22, 2005) (“Respondent’s use of ‘a’ domain name that is identical to Complainant’s mark to divert Internet users to third-party websites for Respondent’s own commercial gain does not constitute a bona fide offering . . . or a legitimate noncommercial or fair use . . . .”). Such use of Home Depot’s trademarks is clearly confusing and deceptive to consumers. As such, Respondent’s website at homecaredepot.com is not used or maintained in good faith and in connection with a bona fide offering of goods or services.
Lastly, Respondent’s use of the homecaredepot.com domain name dilutes the HOME DEPOT Marks. Respondent has diminished consumers’ capacity to associate the HOME DEPOT Marks with the quality products and services offered by Home Depot under the HOME DEPOT Marks by using the HOME DEPOT Marks in association with a site purporting to offer goods and services that are not associated with or related to Complainant’s goods and services. Respondent’s use creates the very real risk that the HOME DEPOT Marks are not only being associated with numerous products and services not related to Home Depot’s own goods and services, but also to goods and services over which Complainant has no quality control.
[c.] Respondent Registered and Used the Domain Name in Bad Faith.
There are at least two pieces of evidence that show Respondent had knowledge of Home Depot’s trademark rights, yet proceeded to register and use the homecaredepot.com domain name in bad faith: (1) Respondent uses Complainant’s trademarks in its domain name and on its website to direct consumers to commercial websites offering goods and services in direct competition with Complainant; and (2) Respondent is deemed to have constructive knowledge of Home Depot’s trademark rights at the time Respondent registered and began using the homecaredepot.com domain name in light of Home Depot’s numerous U.S. and international trademark applications and registrations for the HOME DEPOT Marks.
Respondent is using the homecaredepot.com domain name, which is identical to the HOME DEPOT Marks, to direct Internet users to commercial websites offering goods and services of the exact nature offered by Complainant. Such use is concrete evidence of bad faith registration and use. See, e.g., Society for the Promotion of Japanese Animation v. In Stealth Mode, citing S. Exposure v. S. Exposure, Inc., FA 94864 (NAF July 18, 2000) (respondent acted in bad faith by attracting Internet users to website that competes with complainant’s business), and Puckett v. Miller, D2000-0297 (WIPO June 12, 2000) (respondent diverted business from complainant to competing website in violation of Policy ¶4(b)(iii)).
Furthermore, it is clear that Respondent registered the disputed domain name with the HOME DEPOT Marks in mind in light of the obvious link between Home Depot and the content advertised on the website, as well as the blatant and unauthorized use of the HOME DEPOT Marks. See MIVA, Inc. v. WhoIs Privacy Inc., citing Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (because link between complainant’s mark and content advertised on respondent’s website obvious, respondent “must have known about the complainant’s mark when it registered the subject domain name”).
In addition, Respondent is deemed to have constructive knowledge of Home Depot’s rights in the HOME DEPOT Marks pursuant to multiple federal U.S. trademark registrations and applications, as well as worldwide trademark registrations and applications, for the HOME DEPOT Marks. “There is a legal presumption of bad faith when [Respondent] reasonably should have been aware of Complainant’s trademarks, actually or constructively.” See Digi Int’l v. DDI Sys., FA124506 (NAF Oct. 24, 2002); see also Thomas B. Hudson v. Ted Machi & Associates, Claim No. FA133759 (NAF Jan., 2003) (“Respondent must be held to be on constructive notice of Complainant’s service mark . . . .”); Assante Holdings, Inc. v. Kevin Baker, Claim No. FA109384 (NAF May 20, 2002) (“Respondent was on notice as to Complainant’s rights in its PERSONAL CFO mark when it registered the disputed domain name because Complainant’s mark is on the Principal Register of the United States Patent and Trademark Office. Registration of the disputed domain name despite this notice is evidence of bad faith registration.”). C-Line Products, Inc. v. Ralco Consulting c/o Robert Lebeaux, Claim No. FA187608 (NAF Oct. 20, 2003) (“Respondent was put on constructive notice of Complainant’s rights in the C-LINE mark prior to Respondent’s registration of the c-line.com domain name by virtue of Complainant’s federal registrations of its mark. Thus, it is found and determined that Respondent registered the disputed domain name in bad faith pursuant to Policy Paragraph 4(a)(iii)”); 15 U.S.C. § 1072.
Any use by Respondent of the HOME DEPOT Marks, even as a domain name, is an infringement of Home Depot’s long-held rights under trademark law. As the panelist in C-Line Products, Inc. v. Ralco Consulting c/o Robert Lebeaux pointedly noted, a potential domain name registrant:
would be well-advised to heed the oft-repeated admonition, such as that of Scott W. Pink, in his treatise, The Internet & E-Commerce Legal Handbook (2001), where at page 110, he states: “Once you have decided on the TLDs and ccTLDs, you will want to select the second level of the domain, the words that signify your unique address. In doing so, you should first conduct both a domain name search to make sure the particular domain is available as well as a trademark search to make sure your choice of a domain name does not potentially infringe on another person or entity’s trademark rights.” C-Line Products, Inc. v. Ralco Consulting c/o Robert Lebeaux, Claim No. FA187608 (NAF October 20, 2003) (Emphasis supplied).
Respondent knew of Home Depot’s rights in the HOME DEPOT Marks. Its registration and infringing use of the homecaredepot.com domain name, despite having such knowledge, indicates bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(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.
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 Complainant must prove the following three elements to obtain an order cancelling or transferring a domain name:
(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 is the owner and user of the HOME DEPOT mark, used for years in connection with home improvement goods and services. The mark was registered with the United States Patent & Trademark Office (“USPTO”) (e.g., Reg. No. 1,431,636 registered Mar. 10, 1987). Such registration is adequate evidence of Complainant’s Policy ¶4(a)(i) rights here. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶4(a)(i)).
Complainant claims the domain name is confusingly similar to Complainant’s mark. It adds a related generic term (“care”), which does not adequately distinguish the disputed domain name from Complainant’s mark. A TLD (whether a gTLD or a ccTLD) does not adequately distinguish the disputed domain name from Complainant’s mark because all domain names must have a TLD. The domain name is confusingly similar to Complainant’s mark under Policy ¶4(a)(i). See Cargill, Incorporated v. Domain Privacy Grp., FA 1501652 (Nat. Arb. Forum Jul. 5, 2013) (determining that the disputed domain name, which contains the complainant’s mark, along with two generic terms and a generic top-level domain, is the equivalent of the mark itself for the purposes of Policy ¶4(a)(i)).
The Panel finds Policy ¶4(a)(i) satisfied.
Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶4(a)(ii). Then the burden shifts to Respondent to show it has 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.”).
Respondent is not known as the <homecaredepot.com> domain name, nor has Complainant approved of Respondent’s use of the HOME DEPOT mark in an Internet domain name. “Domain Manager” is the listed WHOIS registrant of record for this domain name, which is a well-known privacy service and has nothing to do with the disputed domain name. There is no evidence in the record to find Respondent is commonly known by this domain name under Policy ¶4(c)(ii). See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant claims Respondent’s use is not bona fide because the website associated with the domain name is being used to promote various advertising hyperlinks (some of which link to competitors). In Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003), the panel found no bona fide offering when the domain name resolved to a website used only for advertising purposes. This Panel finds the <homecaredepot.com> domain name 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.
Respondent registered the domain name using a privacy service. This means Respondent is not publicly associating itself with the disputed domain name. Therefore, Respondent cannot normally get any rights to the disputed domain name by its use as a domain name, as long as the registration is held this way.
The Panel finds Policy ¶4(a)(ii) satisfied.
Complainant claims Respondent is offering competing advertisements through this website in a manner that disrupts Complainant’s business. The domain name is used to promote links including “Air Conditioner and Heat Pump,” “Air conditioner installers” and ”Heat pump repairs”. These offerings compete with some of Complainant’s services and are adequate evidence to find bad faith registration and use 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).”).
Finally, Respondent registered the disputed domain name using a privacy service. This Panel has repeatedly held this raises a rebuttable presumption of bad faith registration and use under the UDRP in a commercial context. Respondent has done nothing to rebut that presumption.
ICANN requires registrars to remind domain name purchasers they are obligated to provide accurate WHOIS information. Every purchaser of a domain name agrees in UDRP Policy ¶2 “[b]y applying to register a domain name,…, you hereby represent and warrant to us that (a) the statements that you made in your Registration Agreement are complete and accurate…”. This obviously includes the WHOIS information (which is the primary part of any purchase, other than the picking the domain name and paying for it). Arguments respondents use a privacy service to reduce the amount of SPAM they receive is unconvincing because respondents can still be reached through the email address the privacy service displays. In the commercial context, honest merchants disclose their identity. Dishonest merchants do not disclose their identity. There may be a valid reason to conceal an identity in a personal or public policy context. If Respondent had a valid reason to conceal its identity, it could have argued its case. Respondent did not. Therefore, the presumption stands. This unrebutted presumption alone is sufficient to prove bad faith registration and use under Policy ¶4(b).
The Panel finds Policy ¶4(a)(iii) satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes relief shall be GRANTED.
Accordingly, it is Ordered the <homecaredepot.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: Tuesday, July 22, 2014
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