Home Depot Product Authority, LLC v. jorge sandoval
Claim Number: FA2004001892244
Complainant is Home Depot Product Authority, LLC (“Complainant”), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is jorge sandoval (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <grandhomedepot.com>, registered with 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 15, 2020; the Forum received payment on April 15, 2020.
On April 17, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <grandhomedepot.com> 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 20, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 11, 2020 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@grandhomedepot.com. Also on April 20, 2020, 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 May 15, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is the world’s largest home improvement specialty retailer and the sixth largest retailer in the United States, with annual worldwide sales of over $100 billion. Complainant has more than 2,200 retail stores in the U.S., including stores in all 50 states, the District of Columbia, Puerto Rico, the U.S. Virgin Islands, and Guam. Complainant also has retail stores in ten Canadian provinces and Mexico. Complainant has rights in the HOME DEPOT mark based upon its registration of the mark in the United States in 2000.
Complainant alleges that the disputed domain name is confusingly similar to its HOME DEPOT mark because it wholly incorporates the mark, merely adding the generic term “grand” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s HOME DEPOT mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to resolve to a site which offers competing products for sale.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent is attempting to attract internet users to its site which resolves to competing products and services for sale. Finally, Respondent registered the disputed domain name with knowledge of Complainant’s rights in the HOME DEPOT mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for the mark HOME DEPOT and uses it to provide a wide range of home improvement products. The mark was registered in 2000 and it is famous.
Complainant has not licensed or otherwise authorized Respondent to use its mark. The disputed domain name was registered in 2019. The resolving website offers products that compete with those 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name wholly incorporates Complainant’s HOME DEPOT mark, merely adding the generic term “grand” and the “.com” gTLD. The addition of a generic word and a gTLD to a mark may not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i)”). Thus, the Panel finds that the <grandhomedepot.com> domain name is confusingly similar to Complainant’s HOME DEPOT mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its HOME DEPOT mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names”). Here, the WHOIS information of record notes “jorge sandoval” as the registrant. Thus, the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
The resolving website offers for sale products that compete with those of Complainant. Use of a disputed domain name to sell products and/or services that compete with a complainant’s business does not constitute a bona fide offering of goods or services or a legitimate noncommercial fair use under Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”). Therefore, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to misdirect users to a commercial website which offers competing goods for sale. Use of a domain name to divert Internet users to Respondent’s website to offer competing products can evince bad faith registration and use per Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Thus, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per 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 <grandhomedepot.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 15, 2020
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