Home Depot Product Authority, LLC v. Kermit Kuehn / Trafficmasterfloors.com
Claim Number: FA1705001733479
Complainant is Home Depot Product Authority, LLC ("Complainant"), represented by Richard J. Groos of King & Spalding LLP, Texas, U.S.A. Respondent is Kermit Kuehn / Trafficmasterfloors.com ("Respondent"), Arkansas, U.S.A.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <trafficmasterfloors.com>, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 26, 2017; the Forum received payment on May 26, 2017.
On May 30, 2017, GoDaddy.com, LLC confirmed by email to the Forum that the <trafficmasterfloors.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 May 31, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 20, 2017 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@trafficmasterfloors.com. Also on May 31, 2017, the Written Notice of the Complaint, notifying Respondent of the email 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.
On June 16, 2017, the Forum received email correspondence from Respondent stating as follows: "After consideration of this complaint, and the proposed remedy, I have decided to not contest the complaint and will accept the remedy proposed - that being to transfer the domain name to the complainant via a manner typical for such transfer."
Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 22, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 a formal response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the TRAFFICMASTER mark in connection with flooring and related goods sold at its affiliated Home Depot stores. Complainant has used the mark in the United States and abroad since at least as early as 2000, with worldwide sales exceeding US $1 billion over the past two years. The mark is the subject of four U.S. trademark registrations, and Complainant also claims common law rights arising from longstanding use and promotion.
Respondent registered the disputed domain name <trafficmasterfloors.com> through a privacy registration service in August 2015. Complainant states that Respondent has no relationship, affiliation, connection, endorsement by, or association with Complainant, and has never requested or received any authorization, permission, or license to use the TRAFFICMASTER mark. Complainant states further that Respondent is not commonly known by the disputed domain name or the mark. The domain name directs users to a website that offers information about Complainant's floor coverings and related goods, and contains numerous sponsored advertisements that link to third-party websites, some of which are competitors of Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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.").
Respondent has consented to a transfer of the disputed domain name. He made the same offer in Home Depot Product Authority, LLC v. Kermit Kuehn, FA 1696920 (Forum Nov. 10, 2016) (ordering transfer of <hamptonbayflooring.com>, foregoing UDRP analysis based upon Respondent's consent to transfer). Under the circumstances, the Panel considers it appropriate to address the merits of the Complaint in this case.
The disputed domain name <trafficmasterfloors.com> is identical to Complainant's registered TRAFFICMASTER trademark, but for the addition of the generic term "floors" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Homer TLC, Inc. v. Elan Maher, FA 1613402 (Forum May 18, 2015) (finding <homedepotfloors.com> confusingly similar to THE HOME DEPOT). The Panel finds that the disputed domain name is confusingly similar to Complainant's mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark and was registered without Complainant's authorization. It is being used for a website that describes Complainant's products and contains numerous advertising links to competing products. Such use does not give rise to rights or legitimate interests. See, e.g., Home Depot Product Authority, LLC v. Alex Xril, FA 1708659 (Forum Jan. 24, 2017) (finding lack of rights or legitimate interests where domain name was used for "a purported informational site containing numerous sponsored advertisements, and featuring Complainant's HOME DEPOT mark, color scheme and related marks").
Respondent has failed to come forward with any evidence of rights or legitimate interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed
domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered and is using a domain name incorporating Complainant's mark to create and presumably profit from confusion with Complainant. Respondent's conduct is indicative of bad faith under the Policy. See, e.g., Home Depot Product Authority, LLC v. Alex Xril, supra; Homer TLC, Inc. v. Elan Maher, supra. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <trafficmasterfloors.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 23, 2017
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