Home Depot Product Authority, LLC v. Media2K Group
Claim Number: FA1708001743526
Complainant is Home Depot Product Authority, LLC (“Complainant”), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is Media2K Group (“Respondent”), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homedepotopinion.org>, registered with Name.com, Inc.
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 August 8, 2017; the Forum received payment on August 8, 2017.
On August 9, 2017, Name.com, Inc. confirmed by e-mail to the Forum that the <homedepotopinion.org> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 August 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 5, 2017 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@homedepotopinion.org. Also on August 14, 2017, 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.
On August 15, 2017, the Forum received an e-mail from Respondent, see below. Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 7, 2017, 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 fourth largest retailer in the U.S., with annual worldwide sales of more than $94 billion. It has more than 2,200 retail stores, including stores in all 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, ten Canadian provinces, and Mexico. Complainant uses the HOME DEPOT mark in conjunction with its business practices. Complainant registered the HOME DEPOT in the United States in 1987.
According to Complainant, the disputed domain name is confusingly similar to its HOME DEPOT mark because it incorporates the mark in its entirety, eliminating spaces, adding the generic term “opinion,” and the “.org” generic top level domain (“gTLD”).
Complainant alleges that Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the HOME DEPOT mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. The disputed domain name resolves to a parked website hosting click-through links to goods and services in direct competition with Complainant.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. The disputed domain name disrupts Complainant’s business by diverting internet users to Respondent’s webpage where Respondent is presumably receiving click-through fees for advertising for Complainant’s competitors. Respondent registered the disputed domain name with actual knowledge of Complainant and its rights to the HOME DEPOT mark.
B. Respondent
Respondent did not submit a formal Response in this proceeding. However, in an e-mail to the Forum, Respondent stated, in pertinent part:
Media2K Group takes active measures to avoid attainment and/or retention of registrations of domain names that infringe third party rights, or that it has reason to believe may infringe third party rights. In fact, Media2K Group exercises prompt due diligence when or if it is made aware that a domain name for which it is the registered name holder may violate this policy. When it acquired this Domain, Media2K Group was not aware that it had acquired a domain that might conflict with your client's purported trademark rights.
…
Media2K Group is interested in reaching a swift and amicable conclusion to the current UDRP action and is prepared to transfer this Domain at no cost to your client, and without delay. …
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
In the present case, the parties have both asked for the domain name to be transferred to Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <homedepotopinion.org > domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 7, 2017
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