Home Depot Product Authority, LLC v. survey king / surveyking
Claim Number: FA1804001780480
Complainant is Home Depot Product Authority, LLC (“Complainant”), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is survey king / surveyking (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homedepotsurvey.info>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 5, 2018; the Forum received payment on April 5, 2018.
On April 6, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <homedepotsurvey.info> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the 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 April 6, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 26, 2018 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@homedepotsurvey.info. Also on April 6, 2018, 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 April 30, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Home Depot Product Authority, is the world’s largest home improvement specialty retailer. Complainant uses its HOME DEPOT mark to promote its products and services and established rights in the mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,297,161, registered 1984).
Respondent’s <homedepotsurvey.info> domain name is confusingly similar to Complainant’s mark because it merely adds the generic term “survey” and the generic top-level domain (“gTLD”) “.info.”
Respondent does not have rights or legitimate interests in the <homedepotsurvey.info> domain name. Complainant has not licensed or otherwise authorized Respondent to use its HOME DEPOT mark in any fashion. Respondent is also not commonly known by the disputed domain name as the WHOIS information of record lists “survey king / surveyking” as the registrant.
Respondent is not using the <homedepotsurvey.info> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to resolve to a survey website featuring hyperlinked advertisements, which redirect to websites promoting competing pay-per-click hyperlinks.
Respondent registered and is using the <homedepotsurvey.info> domain name in bad faith. Respondent attempts to disrupt Complainant’s business by diverting Internet users to Respondent’s survey website. Further, Respondent is using the domain name to create confusion with Complainant’s mark for Respondent’s commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the HOME DEPOT mark.
Respondent registered the at-issue domain name after Complainant acquired rights in HOME DEPOT.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent uses the domain name to resolve to a survey website featuring hyperlinked advertisements, which redirect to websites promoting competing pay-per-click hyperlinks.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant shows it has rights in the HOME DEPOT mark under Policy ¶ 4(a)(i) via its registration of such mark with the USPTO, and otherwise. See Expedia, Inc. v. Tan, FA 991075 (Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶ 4(a)(i).”).
Respondent’s at-issue domain name contains Complainant’s entire HOME DEPOT trademark, less its domain name impermissible space, with the generic term “survey” appended thereto and all followed by the top-level domain name “.info”. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish one from the other for the purposes of the Policy. Therefore, the Panel finds that the <homedepotsurvey.info> domain name is confusingly similar to Complainant’s HOME DEPOT under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also, Eastman Chem. Co. v. Patel, FA 524752 (Forum Sep. 7, 2005) (“Therefore, the Panel concludes that the addition of a term descriptive of Complainant’s business … and the addition of the gTLD ‘.com’ are insufficient to distinguish Respondent’s domain name from Complainant’s mark.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Here, Respondent lacks both rights and legitimate interests in respect of the at‑issue domain name.
Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstance from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the <homedepotsurvey.info> domain name lists survey king / surveyking” as its registrant. There is no evidence before the Panel which otherwise suggests that Respondent is known by the at-issue domain and Respondent makes no claim that it is known by the domain name. Therefore, the Panel concludes that Respondent is not commonly known by the <homedepotsurvey.info> domain name pursuant to Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.)
Additionally, Respondent uses the <homedepotsurvey.info> domain name to address a self-described survey services website that offers coupons to those completing the survey. Using the confusingly similar <homedepotsurvey.info> domain name in such manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii). See Homer TLC, Inc. v. Wang, FA 1336037 (Forum Aug. 23, 2010) (holding that, where a disputed domain name purports to offer Internet users a gift card as compensation for filling out surveys, the respondent’s use of the disputed domain name amounts to neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). Moreover, the <homedepotsurvey.info> website displays advertising links to third parties. Doing so is likewise not indicative of either a bona fide offering or fair use pursuant to either Policy ¶ 4(c)(i) or (iii). See Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
Respondent’s <homedepotsurvey.info> domain name was registered and used in bad faith. As discussed below without limitation, Policy ¶ 4(b) specific bad faith circumstances as well as other circumstance are present which compel the Panel to conclude that Respondent acted in bad faith regarding the domain name, pursuant to paragraph 4(a)(iii) of the Policy.
As touched on above, Respondent uses the <homedepotsurvey.info> domain name to address a website that purportedly provides survey services. The website also displays advertising links to third parties. These links appear to be pay-per-click links. Using the confusingly similar domain name in such manner is disruptive to Complainant’s business and demonstrates Respondent’s bad faith registration and use of the domain name under Policy ¶ 4(b)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent uses pay-per-click hyperlinks on the resolving website, which redirects users to competing websites. The use of hyperlinks to disrupt and compete with a complainant’s business is evidence of bad faith registration and use under Policy ¶ 4(b)(iii).”).
Furthermore, Respondent is exploiting the confusion between its domain name and Complainant’s trademark for commercial gain. Respondent’s use of the confusingly similar domain name to create confusion as to its source, sponsorship, affiliation or endorsement indicates Respondent’s bad faith pursuant to Policy ¶ 4(b)(iv). See Homer TLC, Inc. v. Wang, FA 1336037 (Forum Aug. 23, 2010) (finding that, where a disputed domain name offers incentives for the completion of surveys, “Internet users are likely to believe that such activities are sponsored by or affiliated with Complainant and is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iv)”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <homedepotsurvey.info> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 30, 2018
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