DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin / Home Depot Products Authority, LLC v. Whois protection, this company does not own this domain name s.r.o.
Claim Number: FA1710001754592
Complainant is Home Depot Products Authority, LLC (“Complainant”), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin / Whois protection, this company does not own this domain name s.r.o. (“Respondent”), Czech Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hamptonbaydays.com>, registered with Gransy, s.r.o. d/b/a subreg.cz.
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 October 19, 2017; the Forum received payment on October 19, 2017.
On October 26, 2017, Gransy, s.r.o. d/b/a subreg.cz confirmed by e-mail to the Forum that the <hamptonbaydays.com> domain name is registered with Gransy, s.r.o. d/b/a subreg.cz and that Respondent is the current registrant of the name. Gransy, s.r.o. d/b/a subreg.cz has verified that Respondent is bound by the Gransy, s.r.o. d/b/a subreg.cz 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 26, 2017, the Forum served the Complaint and all Annexes, including a Czech and English language Written Notice of the Complaint, setting a deadline of November 15, 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@hamptonbaydays.com. Also on October 26, 2017, the Czech and English language 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 21, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant commenced use of the HAMPTON BAY mark in connection with lighting fixtures and other goods since at least as early as 1986, and in connection with flooring at least as early as February 2012. Since that time, Complainant has continually used the HAMPTON BAY mark in commerce in the United States and abroad. Complainant registered the HAMPTON BAY mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,309,163, registered Jan. 18, 2000). See Compl. Ex. B. Respondent’s <hamptonbaydays.com> domain name is confusingly similar to Complainant’s mark as it contains the entire HAMPTON BAY mark and merely adds the generic term “days” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <hamptonbaydays.com> domain name. There is no evidence that Respondent is commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the domain name, after a series of redirects, resolves to a competing webpage, <amazon.com>. See Compl. Ex. D.
Respondent registered and uses the <hamptonbaydays.com> domain name in bad faith. Respondent uses the <hamptonbaydays.com> domain name to redirect Internet users to a competitor website offering goods and services of the nature offered by Complainant. See Compl. Ex. D. Further, Respondent had constructive and actual knowledge of Complainant’s HAMPTON BAY mark as shown by Complainant’s federal trademark registrations and Complainant’s long-held rights in the HAMPTON BAY mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the <hamptonbaydays.com> domain name on September 16, 2015.
The Panel finds that the disputed domain name is confusingly similar to the valid and subsisting trademark of Complainant; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
The Panel further concludes that it is appropriate to continue this proceeding in English. Respondent demonstrates familiarity with the English language in its choice of a disputed domain name and in its efforts to redirect Internet traffic. The Panel does have the discretion under UDRP Rule 11(a) to determine the appropriate language of the proceedings taking into consideration the particular circumstances of the administrative proceeding. See FilmNet Inc. v Onetz, FA 96196 (Forum Feb. 12, 2001 (finding it appropriate to conduct the proceeding in English under Rule 11, despite Korean being designated as the required language in the registration agreement because the respondent submitted a response in English after receiving the complaint in Korean and English). As such, the Panel concludes that this proceeding shall continue 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, <hamptonbaydays.com>, is confusingly similar to Complainant’s valid and subsisting trademark, HAMPTON BAY. Complainant has made an adequate showing of its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely deleting a space and adding the generic word “days” and the g TLD “.com.” This is insufficient to distinguish the disputed domain name from this 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. Respondent has no license or permission to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the disputed domain name, after a series of redirects, resolves to a competing webpage, <amazon.com>. See Compl. Ex. D.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant argues that Respondent registered and uses the <hamptonbaydays.com> disputed domain name in bad faith by redirecting Internet users to a competitor website offering goods and services of the nature offered by Complainant. Using a confusingly similar domain name to offer services in direct competition with a complainant can evince bad faith under Policy ¶ 4(b)(iii). As noted previously, Complainant claims that the domain name, after a series of redirects, resolves to the website of <amazon.com>, which Complainant claims offers goods that compete with Complainant. See Compl. Ex. D.
Accordingly, the Panel finds that Respondent uses the domain name to offer competing goods and services, disrupting Complainant’s business in bad faith under Policy ¶ 4(b)(iii).
Complainant lastly claims that Respondent had actual knowledge of Complainant’s HAMPTON BAY mark. Complainant contends that Respondent must have had actual knowledge of the HAMPTON BAY mark as shown by Complainant’s federal trademark registrations and Complainant’s long-held rights in the HAMPTON BAY mark. Given this fact and the totality of the circumstances, the Panel finds that Respondent possessed actual knowledge of Complainant’s HAMPTON BAY mark and its rights and interests therein, the Panel finds that Respondent’s actual knowledge demonstrates bad faith under Policy ¶ 4(a)(iii).
As such, the Panel finds that Respondent 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 <hamptonbaydays.com> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: 11/27/2017
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