Homer TLC, Inc. v. QiYanjie / Qi Yanjie
Claim Number: FA1606001677992
Complainant is Homer TLC, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is QiYanjie / Qi Yanjie (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hoimedepot.com>, registered with eName Technology Co., Ltd.
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.
Kenneth L. Port as Panelist.
On June 6, 2016, eName Technology Co., Ltd. confirmed by e-mail to the Forum that the <hoimedepot.com> domain name is registered with eName Technology Co., Ltd. and that Respondent is the current registrant of the name. eName Technology Co., Ltd. has verified that Respondent is bound by the eName Technology Co., 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 June 14, 2016, the Forum served the Complaint and all Annexes, including a Written Notice in the Chinese language of the Complaint, setting a deadline of July 5, 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@hoimedepot.com. Also on June 14, 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 July 13, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 uses its HOME DEPOT mark in connection with its business as a leading provider of consumer home improvement products. Complainant has established rights in its HOME DEPOT mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,314,081, registered February 1, 2000). Respondent’s <hoimedepot.com> domain is confusingly similar to Complainant’s HOME DEPOT mark. Respondent’s domain differs from Complainant’s mark through the addition of the letter “I” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the domain. Respondent is not commonly known by the disputed domain name. Further, Complainant has not licensed, authorized, or permitted Respondent to register the domain. Respondent has failed to use the domain in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent’s domain features competing hyperlinks on its resolving website. See Compl., at Attached Ex. H. Respondent has also ignored Complainant’s attempts to resolve its dispute with Respondent outside of this administrative proceeding. See Compl., at Attached Ex. L.
Respondent has engaged in bad faith registration and use of the <hoimedepot.com> domain. Respondent’s use of the domain host competing hyperlinks disrupts Complainant’s business. Further, Respondent’s use of the domain attracts and misleads consumers for Respondent’s own profit. Respondent also registered the domain with at least constructive knowledge of Complainant’s mark and its rights therein. Finally, Respondent has engaged in the tactic of typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <hoimedepot.com> domain name was registered on January 20, 2009.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid, subsisting and famous trademark, HOME DEPOT, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
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 Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark. Complainant has established rights in its HOME DEPOT mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,314,081, registered February 1, 2000).
The disputed domain name is arrived at by merely adding a letter “i” and the gTLD “.com” to the precise trademark. This is insufficient to distinguish the disputed domain name from the trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark, HOME DEPOT.
Respondent does not appear to have any rights or legitimate interests in or to the disputed domain name. Respondent is not apparently commonly known by the domain. The Panel’s attention is directed to the WHOIS information for the disputed domain name which states that “QiYanjie” as the registrant of record. Further, Respondent is apparently not licensed, authorized, or permitted to register the disputed domain name.
Lacking any contentions from Respondent to rebut these allegations, the Panel finds that Respondent is not commonly known by the domain under Policy ¶ 4(c)(ii).
Complainant claims that Respondent lacks rights and legitimate interests in the <hoimedepot.com> domain name, as evidenced by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. According to Complainant, Respondent’s disputed domain name resolves to a website that features competing hyperlinks, which divert Internet users who are seeking Complainant’s website to Respondent’s website. See Compl., at Attached Ex. H. Complainant asserts that Respondent presumably receives pay-per-click fees from these linked websites. Use of a domain to host competing hyperlinks is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See Provide Commerce, Inc. v. e on Craze, FA1506001626318 (FORUM Aug. 11, 2015) (holding that the respondent was not making a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and 4(c)(iii) where the respondent was using the disputed domain name to host generic links to third-party websites, some of which directly competed with the complainant’s business).
As such, the Panel concludes that Respondent’s actions here do not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Complainant also argues that it has attempted to resolve its dispute with Respondent outside of this administrative proceeding. Specifically, Complainant references its Attached Exhibit L, a copy of the letter sent by Complainant to Respondent regarding the disputed domain. In relevant part, Complainant demands that Respondent “immediately discontinue use of the domain name(s),” and that Respondent “assign the domain name registration(s) to Home Depot.” Complainant contends that it did not receive a response to this letter from Respondent. Panels have held that a respondent’s failure to respond to a complainant’s cease and desist letter is evidence that the respondent lacks rights and legitimate interests in a disputed domain. See The Great Eastern Life Assurance Company Ltd. v. Unasi Inc., D2005-1218 (WIPO Jan. 26, 2006) (stating, “Panel finds that the Respondent’s failure to counter the allegations of the cease and desist letter amounts to adoptive admission of the allegations,” and finding no rights or legitimate interests as the prima facie burden shifted to the respondent, who did not submit a response and therefore failed under Policy ¶ 4(a)(ii)).
As this is a default case where the assertions of Complainant are accepted as true if reasonable, the Panel finds these representations and supporting documentation to be very reasonable. As such, the Panel finds that the Respondent lacks any rights or legitimate interests in or to the disputed domain name.
The Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant alleges that Respondent’s use of the disputed domain name disrupts Complainant’s business by diverting Internet customers seeking Complainant’s website to the website of Respondent. Complainant asserts that Respondent uses pay-per-click hyperlinks on the resolving website, which redirects users to various third-party websites. See Compl., at Attached Ex. H. Panels have found that the use of hyperlinks to disrupt and compete with a complainant’s business is evidence of bad faith under Policy ¶ 4(b)(iii). See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (FORUM July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”).
Accordingly, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii).
Further, Complainant argues that Respondent intentionally attracts, for commercial gain, Internet users to its websites by creating a likelihood of confusion with Complainant’s mark. Complainant contends that Respondent presumably receives “click through” fees through the use of its disputed domain name, and that Complainant registered the disputed domain name to attract and mislead consumers for its own profit. Prior panels have found that hyperlinks are typically associated with referral fees, and a respondent’s use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See AltaVista 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 website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
Therefore, the Panel finds that Respondent has engaged in bad faith use under Policy ¶ 4(b)(iv).
Complainant argues that Respondent had at least constructive knowledge of Complainant's rights in the HOME DEPOT mark at the time the disputed domain was registered. Complainant argues that Respondent's links to Complainant's own website as well as links to competitors indicate that Respondent had knowledge of Complainant's mark and rights. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, the Panel finds that, given the totality of the circumstanced, Respondent had actual knowledge of Complainant's mark and rights.
Therefore, the Panel finds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Finally, Complainant contends that Respondent has engaged in typosquatting, which is evidence of bad faith under Policy ¶ 4(a)(iii). Users here would merely need to mistype the HOME DEPOT mark by adding the letter “i” to be directed to Respondent’s <hoimedepot.com> website rather than Complainant’s. The Complainant argues that the letters “o” and “i” are next to each other on the standard American keyboard. Past panels have found that respondents who take advantage of common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii). See Gap Inc. and its subsidiary, Old Navy (Apparel), LLC v. Jiri Capcuch, FA1405001562139 (FORUM July 2, 2014) (“Respondent adds an additional letter ‘v’ to Complainant’s OLD NAVY mark in the <oldnavvy.com> domain name, a classic example of typosquatting. Respondent’s typosquatting is, in itself, evidence of bad faith under Policy ¶ 4(a)(iii).”).
However, the Panel refuses to take judicial notice of this alleged “common typing error” to find the Respondent engaged in typopsquatting. Perhaps the Respondent did, but more is needed to establish this as a common typing problem. The Panel easily recognizes typing duplicate letters or common misspellings as clear indications of typosquatting. Neither of those problems are evident here nor in the cases cited by Complainant. It seems that one would need to make a more intentional striking of the keys here to arrive at the disputed domain name and Internet users are not likely to make that intentional striking of the keys. At any rate, as the Panel finds other and adequate ground to find for the Complainant, this may be irrelevant. In addition, if this typosquatting was so egregious and such a common error, Complainant provides no explanation why it waited almost seven years to bring this complaint.
Therefore, the Panel finds that Respondent’s typosquatting conduct is not additional evidence of bad faith pursuant to 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 <hoimedepot.com> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: July 14, 2016
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