Home Depot Product Authority, LLC v. Igor Avramenko
Claim Number: FA1902001829915
Complainant is Home Depot Product Authority, LLC (“Complainant”), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is Igor Avramenko (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homedepotcareers.org>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 14, 2019; the Forum received payment on February 14, 2019.
On February 15, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <homedepotcareers.org> 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 February 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 7, 2019 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@homedepotcareers.org. Also on February 15, 2019, 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. Respondent did however send e-mails to the Forum, see below.
On March 10, 2019, 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
Complaint states that it 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 through its trademark registrations in the United States in 2000.
Complainant alleges that the disputed domain name is confusingly similar to its HOME DEPOT mark as it incorporates the mark in its entirety and only adds the generic/descriptive term “careers” and the “.org” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no rights or any legitimate interest in the disputed domain name because Respondent is not commonly known by the disputed domain name, and Respondent has no relationship, affiliation, connection, endorsement, or association with Complainant. Additionally, Respondent does not use the disputed to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent copies Complainant’s famous mark and color combination to give the appearance of being associated with Complainant and redirects users to a third-party resume assistance service through a link displayed on the webpage, likely for commercial gain.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent’s website located at the disputed domain name gives the impression that it is affiliated with Complainant, creating confusion among Internet users for Respondent’s commercial gain. Additionally, Respondent is using the domain name to direct Internet users to third-party commercial websites. Further, Respondent is deemed to have at least constructive knowledge of Complainant’s rights in the HOME DEPOT mark due to Respondent’s use of the domain name and the fame of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, in its second e-mail to the Forum, Respondent states, in pertinent part: “I do not need this domain anymore. Domain and website now cancelled and not working ( I have deleted all folders and configuration of that pages). If you need it, just take it away from me, I will transfer this domain details - and get it for yourself.”
For the reasons set forth below, the Panel will not make any findings of fact.
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 the 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 <homedepotcareers.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 10, 2019
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