DECISION

 

Home Depot Product Authority, LLC v. Srujan Kumar Avula

Claim Number: FA2311002072395

 

PARTIES

Complainant is Home Depot Product Authority, LLC ("Complainant"), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is Srujan Kumar Avula ("Respondent"), India.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <homedepotcomsurveys.com>, registered with NameCheap, Inc.

 

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 November 27, 2023; Forum received payment on November 27, 2023.

 

On November 27, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <homedepotcomsurveys.com> 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 November 28, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 18, 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@homedepotcomsurveys.com. Also on November 28, 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 formal response from Respondent, Forum transmitted to the parties a Notification of Respondent Default. Respondent did however sent an email to Forum, see below.

 

On December 19, 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 generic/descriptive term "comsurveys" along with the ".com" 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 website that was clearly designed to mislead users into believing that they have reached a website that is affiliated with or endorsed by Complainant. For example, the HOME DEPOT mark is prominently displayed in the top left corner, before leading into bullet points of facts that specifically relate to Complainant's history and business. The resolving website includes information regarding how to enter into a Home Depot survey; however, it is abundantly clear that Respondent's use is not purely informational. Instead, the resolving website appears to have been created to obtain personal information from users who are misled by the website's relationship with Complainant. For example, the "contact us" page of the resolving website directs users to contact either the legitimate Home Depot customer service phone number or by email to <contact@homedepotcomsurveys.com>, which is not a legitimate Home Depot email address. Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to pass off as 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 formal Response in this proceeding. In its email to Forum, Respondent states, in pertinent part (emphasis added): "We feel sorry for registering the domain name 'homedepotcomsurveys.com' on Namecheap. We had no bad intention to misuse any of the Home Depot company's brand image. We wanted to provide information on the Sweepstakes program, and everything that was published was educational only. We are willing to transfer the domain name to the company and provide you the Transfer Authorization (EPP) Code if you let me."

 

FINDINGS

For the reasons set forth below, the Panel will not make any findings of fact.

 

DISCUSSION

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.").

 

Identical and/or Confusingly Similar

For the reasons set forth above, the Panel will not analyze this element of the Policy.

 

Rights or Legitimate Interests

For the reasons set forth above, the Panel will not analyze this element of the Policy.

 

Registration and Use in Bad Faith

For the reasons set forth above, the Panel will not analyze this element of the Policy.

 

DECISION

Given the common request of the Parties, it is Ordered that the <homedepotcomsurveys.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: December 19, 2023