Home Depot Product Authority, LLC v. Ved Priy Pandey / AVV Enterprises Pvt. Ltd
Claim Number: FA1806001789926
Complainant is Home Depot Product Authority, LLC (“Complainant”), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is Ved Priy Pandey / AVV Enterprises Pvt. Ltd (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homedepotservice.site>, registered with NameCheap, 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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 4, 2018; the Forum received payment on June 4, 2018.
On June 4, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <homedepotservice.site> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 June 5, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 25, 2018 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@homedepotservice.site. Also on June 5, 2018, 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 June 26, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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, Home Depot Product Authority, LLC, is the world’s largest home improvement specialty retailer and the fourth largest retailer in the United States. Complainant has rights in the HOME DEPOT mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No 2,825,232, registered March 23, 2004). Respondent’s <homedepotservice.site> domain name is confusingly similar to Complainant’s HOME DEPOT mark as Respondent incorporates the mark and merely adds a generic term “service” and a “.site” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <homedepotservice.site> 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. Additionally, 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 resolves to a website where Respondent purports to sell sinks and faucets, which directly compete with Complainant’s business.
Respondent registered the <homedepotservice.site> domain name in bad faith. Respondent attempts to divert Internet users to its website in order to offer competing goods. Furthermore, Respondent uses the disputed domain name to phish for Internet users’ personal information. Finally, Respondent had actual knowledge of Complainant’s rights in the HOME DEPOT mark at the time it registered the <homedepotservice.site> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <homedepotservice.site> domain name.
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.”).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant argues that Respondent has no rights or legitimate interests in the <homedepotservice.site> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the HOME DEPOT mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). The Registrar has verified that the Registrant is “Ved Priy Pandey / Avv Enterprises Pvt. LTD”, Respondent. No information on the record indicates Respondent is known by the disputed domain name or was authorized to register a domain name incorporating Complainant’s mark. The Panel finds, under Policy ¶ 4(c)(ii), that Respondent is not commonly known by the <homedepotservice.site> domain name.
Complainant further argues Respondent’s lack of rights or legitimate interests in the <homedepotservice.site> domain name is demonstrated by its failure to use the name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Complainant contends that the disputed domain name resolves to a website where Respondent sells goods which directly compete with Complainant’s business. The use of a disputed domain name to directly compete with a Complainant’s business is not indicative of rights and legitimate interests in a domain name for the purposes of Policy ¶¶ 4(c)(i) and (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).”). The Panel finds that Respondent does not have rights or legitimate interests in the <homedepotservice.site> domain name per Policy ¶¶ 4(c)(i) or (iii).
Complainant asserts the website is being used in the furtherance of a phishing scheme. Use of a disputed domain name in an attempt to phish for Internet users’ personal information may evince a finding of a lack of rights or legitimate interests per Policy ¶ 4(a)(ii). Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum Mar. 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information). The Panel finds that Respondent does not have rights or legitimate interests in respect of the <homedepotservice.site> domain name per Policy ¶ 4(a)(ii).
Complainant has proved this element.
Complainant asserts Respondent registered and is using the <homedepotservice.site> domain name in bad faith. Specifically, Complainant contends Respondent attempts to attract, for commercial gain, Internet users to the disputed domain name which features competing goods for sale. Use of a disputed domain name to offer goods which directly compete with a complainant’s business may demonstrate bad faith under 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).”). Complainant provides a screenshot of the disputed domain name’s resolving webpage in furtherance of this assertion. The Panel finds from Complainant’s uncontested allegations and evidence that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant asserts that Respondent’s use of the disputed domain name in furtherance of a phishing scheme is additional evidence of its bad faith registration and use. Use of a domain name in an attempt to phish for Internet user’s personal information may evince a finding of bad faith per Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”) The Panel finds Respondent registered and used the <homedepotservice.site> domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant contends Respondent registered the <homedepotservice.site> domain name with actual knowledge of Complainant’s rights in the HOME DEPOT mark. Actual knowledge of a complainant’s rights in a mark prior to registration of a disputed domain name may be evidence of a respondent’s bad faith per Policy ¶ 4(a)(iii). See Twentieth Century Fox Film Corporation and Fox International Channels (US), Inc. v. Daniel Pizlo / HS, FA1412001596020 (Forum Jan. 27, 2015) (finding that the respondent must have had actual knowledge of the complainant and its rights in the FOX LIFE mark, where the respondent was using the disputed domain name to feature one of the complainant’s videos on its website, indicating that the respondent had acted in bad faith under Policy ¶ 4(a)(iii)). Complainant asserts that, in light of the obvious link between Complainant’s business and the goods described and advertised on the disputed domain, Respondent registered the name with knowledge of Complainant’s rights in the HOME DEPOT mark. The Panel finds Respondent had actual knowledge of Complainant’s rights in the mark and thus registered and uses the name in bad faith per Policy ¶ 4(a)(iii).
Complainant has proved this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <homedepotservice.site> domain name be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: June 29, 2018
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