Home Depot Product Authority, LLC v. Milen Radumilo
Claim Number: FA1710001752087
Complainant is Home Depot Product Authority, LLC (“Complainant”), represented by Richard J. Groos of King & Spalding LLP, Texas. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <www-homedepot.com> (‘the Domain Name’), registered with Tucows Domains Inc.
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 of Palmer Biggs IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 4, 2017; the Forum received payment on October 4, 2017.
On Oct 06, 2017, Tucows Domains Inc. confirmed by e-mail to the Forum that the <www-homedepot.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 October 9, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 30, 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@www-homedepot.com. Also on October 9, 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 November 2, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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 contentions can be summarised as follows:
Complainant owns the HOME DEPOT mark registered, inter alia, in the USA for home improvement retail services used since 1979. It has the domain name homedepot.com.
The Domain Name only differs from Complainant’s own domain name by the substitution of a hyphen where there would normally be a period or full stop and is confusingly similar to Complainant’s HOME DEPOT mark. The addition of www, a hyphen and the gTLD is not enough to distinguish the Domain Name from Complainant’s mark.
Respondent has no rights or legitimate interests in the Domain Name. Respondent is not commonly known by the Domain Name. Respondent has no relationship with Complainant and the former has not asked for permission to use the Domain Name.
The Domain Name, registered in 2017, ultimately resolves to the home page of Rooms To Go an online retailer that offers competing services to those offered by Complainant. Using the Domain Name to redirect Internet users interested in Complainant’s services to third party web sites is not a legitimate non commercial fair use or use in relation to a bona fide offering of goods and services.
The Domain Name is an example of typosquatting which is a strong indicator of bad faith as the intention is to attract Internet users who misspell Complainant’s domain name. Directing Internet users to competing goods and services is also evidence of registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant’s group of companies owns the HOME DEPOT mark registered, inter alia, in the USA for home improvement retail services with first use recorded as 1979. It has the domain name homedepot.com.
The Domain Name registered in 2017 has been used to provide links to a competitor of Complainant.
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 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 Domain Name consists of Complainant’s HOME DEPOT mark (registered, inter alia, in the USA for home improvement retail services with first use in commerce recorded as 1979), the letters ‘www’, a hyphen and the gTLD.com.
Panels have found that adding ‘www’ indicating worldwide web to the front of a registered mark does not distinguish a domain name from that mark. See Citizens Financial Group Inc. v Paul Taylor, FA 1714579 (Forum Mar. 14 2017)
Similarly the addition of punctuation such as a hyphen does not distinguish a domain name from a Complainant’s mark. See Blizzard Entertainment Inc. v XINXIU ZENG/ haimin liang, FA 1736365 (Forum July 19, 2017).
The gTLD .com does not serve to distinguish the Domain Name from the HOME DEPOT mark, which is the distinctive component of the Domain Name. See Red Hat Inc. v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which Complainant has rights.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that Respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that Complainant had not licensed or authorized Respondent to use its ALASKA AIRLINES mark).
Redirecting Internet users interested in Complainant to competing third party websites is not an indication of rights or a legitimate interest under the Policy. See Upwork Global Inc. v Shoaib Malik, FA 154759 (Forum Feb 3, 2016).
As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing Complainant’s well known mark in what appears on the face of it to be a typosquatting registration.
Typosquatting itself is evidence of relevant bad faith registration and use. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) ('registering a domain name which entirely incorporates a famous mark with additional letter (s) in the hope that Internet users will mistype Complainant’s mark and be taken to Respondent’s site is registration and use in bad faith). Typosquatting and the use of the Domain Name to point to a site in the business of retail services related to home improvement makes it more likely than not that Respondent knew about Complainant and its business at the time of registration and use. Further, redirection to competing services is also registration and use in bad faith. See Disney Enters, Inc v Noel, FA 198805 (Forum Nov. 11, 2003)(‘Respondent registered a domain name confusingly similar to Complainant’s mark to divert Internet users to a competitor’s web site. It is a reasonable inference that respondent’s purpose of registration and use was to either disrupt or create confusion for Complainant’s business in bad faith pursuant to Policy 4 (b)(iii) and (iv). )
As such, the Panel holds that Complainant has made out its case that the Domain Name was registered and used in bad faith under Policy 4 (b)(iii) and (iv) and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <www-homedepot.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: November 13, 2017
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