Home Depot Product Authority, LLC v. Alex Xril
Claim Number: FA1612001708659
Complainant is Home Depot Product Authority, LLC (“Complainant”), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is Alex Xril (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <storehomedepot.com>, registered with 1&1 Internet SE.
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.
Complainant submitted a Complaint to the Forum electronically on December 20, 2016; the Forum received payment on December 20, 2016.
On December 21, 2016, 1&1 Internet SE confirmed by e-mail to the Forum that the <storehomedepot.com> domain name is registered with 1&1 Internet SE and that Respondent is the current registrant of the name. 1&1 Internet SE has verified that Respondent is bound by the 1&1 Internet SE 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 December 22, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2017 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@storehomedepot.com. Also on December 22, 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 January 23, 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, Home Depot Product Authority, LLC, is the entity owning `trademarks for the HOME DEPOT home improvement retailer. Complainant has rights to the HOME DEPOT mark based upon registration with the United States Patent and Trademark Office (“USPTO”) as well as other major trademark agencies (e.g., Reg. No. 1,188,191, registered Jan. 26, 1982). See Compl., at Attached Ex. B. Respondent’s <storehomedepot.com> is confusingly similar to Complainant’s mark, as it contains the mark in its entirety, less the space, merely differing through the addition of the descriptive term “store” and the generic top-level domain name (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <storehomedepot.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the HOME DEPOT mark in any way. Respondent’s use of the disputed domain does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain name resolves to a purported informational site containing numerous sponsored advertisements. The resolving site also uses the HOME DEPOT marks and related marks belonging to Complainant in an attempt to pass off as Complainant.
Respondent registered and is using the disputed domain name in bad faith. Respondent exhibits Policy ¶ 4(b)(iii) bad faith by using its confusingly similar <storehomedepot.com> to divert Internet users to third-party websites, some of which compete directly with Complainant’s business. Also, due to the obvious link between Complainant and the information on the resolving website, Respondent had constructive knowledge of Complainant’s rights in the HOME DEPOT mark at the time it registered and subsequently used the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was created on February 8, 2016.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark; 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.
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, <storehomedepot.com> is confusingly similar to Complainant’s valid and subsisting trademark, HOME DEPOT. Respondent arrives at the disputed domain name by merely adding the generic word “store” before the exact words as the trademark, deleting a space and adding the g TLD “.com.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. There is no evidence in the record that indicates Respondent is known by the disputed domain name. Respondent also does not make a bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent’s <storehomedepot.com> resolves to a purported informational site containing numerous sponsored advertisements, and featuring Complainant’s HOME DEPOT mark, color scheme and related marks. See Compl., at Attached Ex. E.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel also finds that Respondent engaged in bad faith use and registration of the disputed domain name. Using the disputed domain name, Respondent appears to attempt to divert Internet users to third-party websites, some of which compete directly with Complainant’s business. Use of a domain name to divert potential customers of a complainant to websites which compete with the complainant’s business can be evidence of Policy ¶ 4(b)(iii) bad faith. As such, the Panel finds that Respondent has engaged in bad faith use and registration.
Finally, the Panel finds that Respondent registered the disputed domain name with actual notice of Complainant’s prior rights in and to the trademark HOME DEPOT. Given the fame of Complainant’s mark, under the totality of the circumstances, it is unbelievable that Respondent landed on the disputed domain name out of chance.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <storehomedepot.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: January 24, 2017
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