Home Depot Product Authority, LLC v. Abedellatif Shatila / SHATILA E-COMMERCE
Claim Number: FA1706001737594
Complainant is Home Depot Product Authority, LLC (“Complainant”), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is Abedellatif Shatila / SHATILA E-COMMERCE (“Respondent”), Lebanon.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <homedepotcareers.com> and <myhomedepotcareers.com>, registered with Name.com, Inc.; GoDaddy.com, 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 27, 2017; the Forum received payment on June 27, 2017.
On June 28, 2017; Jun 29, 2017, Name.com, Inc.; GoDaddy.com, LLC confirmed by e-mail to the Forum that the <homedepotcareers.com> and <myhomedepotcareers.com> domain names are registered with Name.com, Inc.; GoDaddy.com, LLC and that Respondent is the current registrant of the names. Name.com, Inc.; GoDaddy.com, LLC has verified that Respondent is bound by the Name.com, Inc.; GoDaddy.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”).
On June 30, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 20, 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@homedepotcareers.com, postmaster@myhomedepotcareers.com. Also on June 30, 2017, 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 25, 2017 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant, Home Depot Product Authority, LLC, is the world’s largest home improvement specialty retailer and uses the HOME DEPOT mark to provide and market products. Complainant has rights in the mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,314,081, registered Feb.1, 2000). See Compl. at Attached Ex. B. Respondent’s <homedepotcareers.com> and <myhomedepotcareers.com> are confusingly similar as it contains Complainant’s mark in its entirety, merely adding the generic terms “careers” and “my” and the generic top-level domain (“gTLD”) “.com.”
Respondent does not have rights or legitimate interests in the <homedepotcareers.com> and <myhomedepotcareers.com> domain names. Respondent is not commonly known by the disputed domain name and Complainant has not granted respondent permission or license to use the HOME DEPOT mark for any purpose. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent is using the domain names to redirect Internet users to third party websites for commercial gain. See Compl., at Attached Ex. D. Further, Respondent is diverting Internet users to a website offering for sale goods in direct competition with Complainant. Id.
Respondent has registered and uses the <homedepotcareers.com> and <myhomedepotcareers.com> domain names in bad faith. Respondent uses the disputed domain names to divert Internet users from Complainant to third party websites for commercial gain. Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the HOME DEPOT marks.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain names were created on February 6, 2016.
The Panel finds that the disputed domain names are confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain names; and that the Respondent has engaged in bad faith use and registration of the disputed domain names.
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 names, <homedepotcareers.com> and <myhomedepotcareers.com>, are confusingly similar to Complainant’s valid and subsisting trademark, HOME DEPOT. Complainant has adequately plead its rights and interests in this trademark. Respondent arrives at the disputed domain names by merely appending the generic words “careers” and “my … careers” plus the g TLD “.com” to Complainant’s trademark. This is insufficient to distinguish the disputed domain names from Complainant’s trademark.
As such, the Panel finds that the disputed domain names are confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain names. Respondent has no license or permission to register the disputed domain names. Respondent is not commonly known by the disputed domain names.
Furthermore, Respondent is not using the disputed domain names to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Using confusingly similar domain names for commercial gain to direct Internet users to websites offering directly competitive goods as Respondent apparently has done is not a bona fide offering of goods or services or legitimate noncommercial or fair use of the domain names. See Vapor Blast Mfg. Co. v. R & S Tech., Inc., FA 96577 (Forum 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). Here, Respondent’s disputed domain names appear to resolve in a parked website with links for various third party websites which offer the same type of home improvement goods sold by Complainant under its HOME DEPOT mark. See Compl. at Attached Ex. D.
Accordingly, the Panel finds that such a use is not a bona fide offering of goods or services or legitimate noncommercial or fair use and, therefore, Respondent has no rights or legitimate interests in or to the disputed domain names.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain names. Respondent is apparently using the disputed domain names to direct Internet users to third party websites which offer goods in direct competition with those sold by Complainant. Diverting business from complainant to competing websites is evidence of bad faith under Policy ¶ 4(b)(iii). See Society for the Promotion of Japanese Animation v. In Stealth Mode, citing S. Exposure v. S. Exposure, Inc., FA 94864 (Forum July 18, 2000) (respondent acted in bad faith by attracting Internet users to website that competes with complainant’s business). Complainant provides a screenshot of the resolving webpage, which appears to contain links to competing goods and services. See Compl., at Attached Ex. D. Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iii).
Further, Complainant argues Respondent must have had actual knowledge of Complainant’s HOME DEPOT mark and business because Respondent used Complainant’s trademark in its domain names to ultimately direct users to a websites that sell goods in direct competition with Complainant. Respondent registered the domain names using added generic terms coupled with Complainant’s HOME DEPOT mark, which is famous and familiar to countless consumers. Due to the fame of the Complainant’s trademark and a totality of the circumstances, the Panel finds that Respondent had actual notice of Complainant’s rights in and to the trademark HOME DEPOT.
Therefore, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <homedepotcareers.com> and <myhomedepotcareers.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: July 26, 2017
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