HHG Global Designs LLC and Heritage Home Group, LLC v. [Registrant]
Claim Number: FA1805001787057
Complainant is HHG Global Designs LLC and Heritage Home Group, LLC (“Complainant”), represented by J. Aaron Carnahan, Illinois, USA. Respondent is [Registrant] (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <herritagehome.com>, registered with Google 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 16, 2018; the Forum received payment on May 16, 2018.
On May 17, 2018, Google LLC confirmed by e-mail to the Forum that the <herritagehome.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 May 22, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 11, 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@herritagehome.com. Also on May 22, 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 June 20, 2018, 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, HHG Global Designs, LLC and Heritage Home Group, LLC, is a home furnishing business that markets home furnishing-related goods and services. Complainant claims rights in the HERITAGE mark based upon registration with the United Kingdom Intellectual Property Office (“UKIPO”) (e.g., Reg. No. 896,231, registered June 22, 1966). See Compl. Annex F. Respondent’s <herritagehome.com> domain name is confusingly similar because it contains the HERITAGE mark and contains an additional letter.
Respondent lacks rights and legitimate interests in the <herritagehome.com> domain name. Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent to use the marks in any fashion. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent is using the disputed domain name to impersonate Complainant’s employees to instruct Complainant’s customers to wire payments for outstanding invoices to Respondent. See Compl. Annex G. Further, it does not appear as though Respondent maintains any active website associated with the at-issue domain name.
Respondent registered and is using the <herritagehome.com> domain name in bad faith. Respondent is using the disputed domain name to pass off as Complainant to send fraudulent emails to Complainant’s customers in an attempt to intercept wire payments by creating a likelihood of confusion with the domain name and Complainant’s mark. See Compl. Annex G. Further, Respondent engages in typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the domain name on April 13, 2018.
The Panel finds that the disputed domain name is confusingly similar with Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has proceeded 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.”).
Preliminary Issue: Multiple Complainants
In the instant proceeding, there are two Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
HHG Global Designs LLC appears to be the global designer of Heritage Home Group LLC. As such, there appears to be the requisite nexus between the two entities to be treated as one. Therefore, in this proceeding, they shall be referred to collectively as “Complainant.”
The Panel finds that the disputed domain name, <herritagehome.com> is confusingly similar with Complainant’s valid and subsisting trademark HERITAGE HOME. Respondent arrives at the disputed domain name by merely adding an “r” to “heritage” and the gTLD “.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. Respondent has no license, right or permission to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Respondent fails to apparently use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent is apparently using the disputed domain name to impersonate Complainant’s employees to instruct Complainant’s customers to wire payments for outstanding invoices to Respondent. See Compl. Annex G. Further, it does not appear as though Respondent maintains any active website associated with the at-issue domain name.
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 alleges that Respondent registered and is using the disputed domain name in bad faith. Specifically, Complainant argues that Respondent is using the domain name to impersonate Complainant in order to fraudulently intercept payments from Complainant’s customers. Use of a domain to pass off as Complainant’s employees to create a likelihood of confusion with Complainant and Complainant’s marks in an attempt to steal from Complainant’s customers’ may be evidence of bad faith under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use per Policy ¶ 4(b)(iv)). Here, Complainant provides screen shots of emails sent to Complainant’s customers which show Respondent impersonating Complainant’s employees in order to incept payments. See Compl. Annex G. Accordingly, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant further argues that Respondent registered and is using the disputed domain name in bad faith by engaging in the practice of typosquatting. Use of a domain name to benefit from an internet users’ typographical errors may be evidence of bad faith under Policy ¶ 4(a)(iii). See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Here Complainant asserts that Respondent engages in typosquatting by adding the letter “r” to the mark in the disputed domain name. Therefore, the Panel finds that the Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii).
Also, given the nature of the typosquatting and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s prior rights in and to the trademark HERITAGE HOME.
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 <herritagehome.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: June 25, 2018
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