HomeGoods, Inc. v. ALexandr Tsoy / Home Good Stuff
Claim Number: FA2007001902743
Complainant is HomeGoods, Inc. (“Complainant”), represented by Mary Grace Gallagher of Alston & Bird, LLP, United States. Respondent is ALexandr Tsoy / Home Good Stuff (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homegoodstuff.com>, registered with Tucows Domains Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 2, 2020; the Forum received payment on July 2, 2020.
On July 2, 2020, Tucows Domains Inc. confirmed by e-mail to the Forum that the <homegoodstuff.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 July 6, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 27, 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@homegoodstuff.com. Also on July 6, 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 July 29, 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 provides retail store services that feature a variety of household products. Complainant has over 700 retail locations throughout the United States. Complainant has rights in the HOMEGOODS mark based on registration in the United States in 2003.
Complainant alleges that the disputed domain name is confusingly similar to its HOMEGOODS mark because it simply deletes the letter “s” from the mark and adds the generic term “stuff” and the “.com” generic top level domain (“gTLD”) to form the disputed domain name.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent to use its HOMEGOODS mark. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to trade off of the goodwill of Complainant and offer products for sale.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent disrupts Complainant’s business by diverting consumers to Respondent’s competing website for commercial gain. Additionally, Respondent had knowledge of Complainant’s rights in the HOMEGOODS mark based on the fame and notoriety of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark HOME GOODS dating back to at least 2003.
The disputed domain name was registered in 2020.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that offers for sale products that compete with those offered by 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 incorporates Complainant’s mark, merely deleting the “s” from the end of the mark and adding the generic term “stuff” and the “.com” gTLD. The omission of a letter from a mark and the addition of a generic term and gTLD are both insufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Staples, Inc. v. Whois Privacy Shield Services, FA 1617690 (Forum June 5, 2015) (holding that “Changing a single letter (especially when it is the final letter) is a minor enough change to support a finding of confusing similarity under Policy ¶ 4(a)(i).”); see also 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).”). Therefore, the Panel finds that the <homegoodstuff.com> domain name is confusingly similar to Complainant’s HOMEGOODS mark under Policy ¶ 4(a)(i).
Complainant has not authorized or licensed Respondent to use the HOMEGOODS mark. Respondent is not commonly known by the disputed domain name: when no response is submitted, 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 Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Where the WHOIS information is similar or related to the disputed domain name, the Panel may still find the respondent lacks rights or legitimate interest in the disputed domain name if the respondent fails to provide affirmative evidence in support of this identity. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name). Here, the WHOIS information of record notes “Alexandr Tsoy / Home Good Stuff” as the registrant but Respondent provides no affirmative evidence in support of this identity. 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 offered by Complainant. This does not constitute a bona fide offering of goods or services or legitimate noncommercial or 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 under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(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 disrupts Complainant’s business by diverting consumers to Respondent’s website where it offers competing products for sale. Use of a disputed domain name to redirect consumers to a website that offers competing products and/or services constitutes bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See ZIH Corp. v. ou yang lin q, FA1761403 (Forum December 29, 2017) (finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products); see also ShipCarsNow, Inc. v. Wet Web Design LLC, FA1501001601260 (Forum Feb. 26, 2015) (“Respondent’s use of the domain name to sell competing services shows that Respondent is attempting to commercially benefit from a likelihood of confusion. Therefore the Panel finds that a likelihood of confusion exists, that Respondent is attempting to commercially benefit from Complainant’s mark, and that Complainant has rights that predate any rights of the Respondent, all of which constitutes bad faith under Policy ¶ 4(b)(iv).”). Therefore, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and (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 <homegoodstuff.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 29, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page