Home Depot Product Authority, LLC v. DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin / Whois protection, this company does not own this domain name s.r.o.
Claim Number: FA1711001759312
Complainant is Home Depot Product Authority, LLC (“Complainant”), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin / Whois protection, this company does not own this domain name s.r.o. (“Respondent”), Czech Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <yourhomedepot.com>, registered with Gransy, s.r.o. d/b/a subreg.cz.
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 November 20, 2017; the Forum received payment on November 20, 2017.
On Nov 23, 2017, Gransy, s.r.o. d/b/a subreg.cz confirmed by e-mail to the Forum that the <yourhomedepot.com> domain name is registered with Gransy, s.r.o. d/b/a subreg.cz and that Respondent is the current registrant of the names. Gransy, s.r.o. d/b/a subreg.cz has verified that Respondent is bound by the Gransy, s.r.o. d/b/a subreg.cz 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 November 27, 2017, the Forum served the Complaint and all Annexes, including a Czech language and English language Written Notice of the Complaint, setting a deadline of December 18, 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@yourhomedepot.com. Also on November 27, 2017, the Czech language 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 December 20, 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 in the U.S., including stores in all 50 states, the District of Columbia, Puerto Rico and the U.S. Virgin Islands, and Guam. It also has retail stores in ten Canadian provinces and Mexico. Through its predecessors in interest and licensees it has used the HOME DEPOT and related marks since at least as early as 1979 and has rights in the mark based upon its registration in the United States in 2000.
Complainant alleges that the disputed domain name is confusingly similar to Complainant’s HOME DEPOT mark, as the domain name differs from the mark only by the addition of the pronoun “your” and the generic top-level domain (“gTLD”) “com.”
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use the HOME DEPOT mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the domain name redirects to a series of domain names, including those of competitors, before ultimately resolving to Complainant’s own home page. The domain name also resolves to websites of Complainant’s competitors.
Respondent registered and is using the disputed domain name in bad faith. Respondent’s use of the domain name to resolve to Complainant’s own website and websites of Complainant’s competitors not only implies it had actual knowledge of Complainant, but is independent evidence of its bad faith registration and use.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark HOME DEPOT dating back to at least 2000.
The disputed domain name was registered in 2015.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name redirects to a series of domain names, including those of competitors, before ultimately resolving to Complainant’s own home page.
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.”).
The Panel notes that the Registration Agreement is written in Czech and English, thereby making either language the language of the proceedings.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English language Complaint and English and Czech language Commencement Notification, and concludes that the remainder of the proceedings shall be conducted in English.
The disputed domain name is confusingly similar to the HOME DEPOT mark, as the domain name adds the pronoun “your” and the “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also BBY Solutions, Inc. v Best Buy Online / M/S Best Buy Online, FA 1620654 (Forum Jul. 2, 2015) (“The addition of the generic word ‘my’… does not prevent a finding that the disputed domain name and mark are identical or confusingly similar.”). The Panel notes that the domain name also omits the spacing in the mark, which is an irrelevant change under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel therefore finds that the disputed domain name is confusingly similar to the HOME DEPOT mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. 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). The WHOIS information of record identifies Respondent as a privacy service “DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin / Whois protection, this company does not own this domain name s.r.o.”; during the proceedings, the registrant was revealed to be “Hulmiho Ukolen”. These names are not related to the disputed domain name. The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
The disputed domain name redirects users to either Complainant’s own homepage, or that of one of Complainant’s competitors. Use of a domain name to link to a complainant’s competitors or to the complainant’s own website is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Coryn Group, Inc. v. Media Insight, FA 198959 (Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)). The Panel therefore finds that Respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) or (iii).
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, Complainant uses the disputed domain name to divert Internet users: this is evidence of bad faith per Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)); see also Verizon Trademark Servs. LLC v. Boyiko, FA 1382148 (Forum May 12, 2011) (“The Panel finds that Respondent’s registration and use of the confusingly similar disputed domain name, even where it resolves to Complainant’s own site, is still registration and use in bad faith pursuant to Policy ¶ 4(a)(iii).”). The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and/or 4(a)(iii).
Further, Respondent’s use of the domain name to resolve to Complainant’s own website indicates it had actual knowledge of Complainant’s rights. Such actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith also on these grounds.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <yourhomedepot.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 21, 2017
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