DECISION

 

Home Depot Product Authority, LLC v. jeff smith

Claim Number: FA2310002066631

PARTIES

Complainant is Home Depot Product Authority, LLC ("Complainant"), represented by Lena T. Colin of King & Spalding LLP, Texas, USA. Respondent is jeff smith ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <homedepots.shop>, registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 17, 2023; Forum received payment on October 17, 2023.

 

On October 18, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <homedepots.shop> 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 October 23, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 13, 2023 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@homedepots.shop. Also on October 23, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On November 14, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it is the world's largest home improvement specialty retailer and the fourth largest retailer in the United States, with worldwide sales in fiscal year 2022 of $157.4 billion. Complainant has more than 2,300 retail stores in the U.S., including stores in Puerto Rico, the U.S. Virgin Islands, and Guam. It also has retail stores in Canada and Mexico. Complainant has rights in the HOME DEPOT mark through its registration in the United States in 2000.

 

Complainant alleges that the disputed domain name is identical or confusingly similar to its HOME DEPOT mark as it incorporates the mark in its entirety and merely adds the letter "s" along with the ".shop" generic top-level domain ("gTLD"). Complainant cites UDRP precedents to support its position.

 

According to Complainant, Respondent lacks 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 its HOME DEPOT mark in any way. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for a legitimate noncommercial or fair use. Instead, the resolving offers products related to Complainant's business. Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent offers goods for sale which compete with those of Complainant. Respondent registered the disputed domain name with actual knowledge of Complainant's rights in the HOME DEPOT mark. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark HOME DEPOT and uses it to market home improvement products.

 

Complainant's rights in its mark date back to at least 2000.

 

The disputed domain name was registered in 2023.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The resolving website offers competing products for sale.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) ("Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint").

 

Identical and/or Confusingly Similar

The disputed domain incorporates Complainant's HOME DEPOT mark in its entirety and merely adds the letter "s" along with the ".shop" generic top-level domain ("gTLD"). Under Policy ¶ 4(a)(i), adding a gTLD and/or relevant or meaningless letters is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) ("The domain name contains the mark in its entirety, with only the addition of the generic letters 'sb' and the digits '2018,' plus the generic Top Level Domain ("gTLD") '.com.'  These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy."). Therefore, the Panel finds that the disputed domain names are identical or confusingly similar to Complainant's marks under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) ("The WHOIS information of record lists the registrant as "Robert Chris," and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii)."). Here, the WHOIS information of record identifies the registrant as "jeff smith". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Respondent uses the disputed domain name to offer competing products for sale. This is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) ("Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use."). Thus the Panel finds that Respondent fails to use the disputed domain name for to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

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, the resolving website offers competing products. Under Policy ¶ 4(b)(iv), using a disputed domain name to offer goods or services in competition with a complainant is evidence of bad faith registration and use. See CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <homedepots.shop> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: November 14, 2023