Homer TLC, Inc. v. Shiwei Chen
Claim Number: FA1606001677979
Complainant is Homer TLC, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Shiwei Chen (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homedepotr.com> ('the Domain Name') , registered with Dynadot, LLC.
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.
<<Dawn Osborne>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 3, 2016; the Forum received payment on June 3, 2016.
On June 4, 2016, Dynadot, LLC confirmed by e-mail to the Forum that the <homedepotr.com> Domain Name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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”).
On June 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 27, 2016 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@homedepotr.com. Also on June 6, 2016, 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 June 30, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s submissions can be summarised as follows:
The Complainant owns a registered trade mark for HOME DEPOT for home improvement goods and services in the United States with first use recorded as 1979. It launched a web site at homedepot.com in 1992. The mark is well known.
The Domain Name is confusingly similar to the Complainant's HOME DEPOT mark. The gTLD .com is irrelevant to this analysis.
The Domain Name registered in 2010 differs by only a single character ‘r’ from the Complainant's mark and is an example of typosquatting designed to take advantage of Internet users' typographical errors.
The Domain Name links to a web site featuring links to third party web sites some of which compete directly with the Complainant's business. This is not a bona fide offering of goods and services or a legitimate non-commercial or fair use. Respondent has no rights or legitimate interests in the Domain Name. It has not been commonly known by the Domain Name. It has no IP rights relating to the Domain Name and is not affiliated with the Complainant in any way.
The Domain Name was registered and used in bad faith as it uses the Complainant’s mark to offer services provided by the Complainant to take advantage of the Complainant's well known mark to achieve a wrongful competitive advantage for commercial gain. Some of the links display content related to the Complainant showing the use to be intentionally targeting the Complainant.
Typosquatting behaviour itself is evidence of bad faith.
The Respondent did not respond to a cease and desist letter from the Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns a registered trade mark for HOME DEPOT for home improvement goods and services in the United States with first use recorded as 1979. It operates a web site at homedepot.com.
The Domain Name, registered in 2010, links to a web site featuring links to third party web sites some of which compete directly with the Complainant’s business.
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 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 (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.”).
The Complainant has trade mark registrations in the USA for home improvement related goods and services consisting of or containing the well known mark HOME DEPOT, with first use in commerce recorded as 1979. The Domain Name consists of HOME DEPOT adding only a single letter 'r' and the gTLD .com. The Panelist agrees with the Complainant that the Domain Name is confusingly similar to the Complainant’s HOME DEPOT mark under the Policy. See 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 trade mark has a greater tendency to be confusingly similar to the trade mark where the trade mark is highly distinctive); also Jerry Damson Inc. v Tex Int'l Prop Assocs FA 916991 (Nat Arb Forum Apr 10, 2007)("The mere addition of a generic top level domain ("gTLD") ".com" does not serve to adequately distinguish the Domain Name from the mark.") As such the Domain Name is confusingly similar to a well known trade mark in which the Complainant has rights for the purpose of the Policy.
Paragraph 4 (b) of the Rules sets out non-exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including circumstances where, by using the domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on‑line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location (4 (b)(iv))and disrupting the business of a competitor (4(b)(iii)).
Links to third party web sites including those directly competing with the Complainant have appeared on a page attached to the Domain Name for commercial gain. The content of the links shows that the Respondent is aware of the Complainant, its HOME DEPOT trade mark and its activities.
Accordingly, by using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site or other on‑line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location contrary to 4 (b)(iv) of the Policy. The circumstances of the use shows knowledge of the Complainant and its business which is also likely to be disruptive under 4 (b)(iii) of the Policy. See Alta Vista Co. v Krotov, D2000-1091 (WIPO Oct. 25, 2000)(finding bad faith under Policy 4 (b)(iv) where the respondent's domain name resolved to a web site that offered links to third party web sites that offered services similar to the complainant’s services and merely took advantage of Internet users' mistakes') See also Health Republic Insurance Co. v Above.com Legal. FA 1506001622088 (Forum July 10, 2015)('The use of a domain name's resolving web site to host links to competitors shows intent to disrupt that complainant’s business thereby showing bad faith use and registration under Policy 4 (b) (iii).')
The Domain Name also appears to be a clear instance of typosquatting where only the letter ‘r’ has been added to the Complainant’s mark and a gTLD to form the Domain Name. Past panels have also held that typosquatting is in itself bad faith under 4 (b)(iii) See Gap Inc. et al v Jiri Capcuch, FA 1405001562139 (Forum July 2, 2014)(held that addition of a single letter ‘v’ to the mark in a domain name was a classic example of cybersquatting).
Accordingly, the Panel finds that the Domain Name has been registered and used in bad faith .
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <homedepotr.com> domain name be TRANSFERRED from Respondent to Complainant.
<<Dawn Osborne>>, Panelist
Dated: <<July 1, 2016>>
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