DECISION

 

Home Depot Product Authority, LLC v. zheng xuejun

Claim Number: FA2404002093259

PARTIES

Complainant is Home Depot Product Authority, LLC ("Complainant"), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is zheng xuejun ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <homedepot.onl>, 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 April 15, 2024; Forum received payment on April 15, 2024.

 

On April 15, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <homedepot.onl> 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 April 16, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 6, 2024 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@homedepot.onl. Also on April 16, 2024, 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 May 7, 2024, 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 ".onl" generic top-level domain ("gTLD").

 

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 disputed domain name directs to a website that was clearly designed to mislead users into believing that they have reached a website that is affiliated with or endorsed by Complainant: the HOME DEPOT Mark is prominently displayed in the top left corner, and in the center of the home page, and the first paragraph on the home page begins with "As the proud owner of The Home Depot [Complainant], one of the largest home improvement retailers worldwide, I want to welcome you into our orange home and explain why we believe we're the best option for your next project" before leading into several paragraphs of information that specifically relate to Complainant's history and business. The disputed domain name purports to direct to a blog filled with posts related to home improvement and home improvement products. 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: the "contact us" page of the resolving website directs users to contact either Complainant's legitimate customer service phone number or send an email to "customercare@homedepot.onl"; and the "Terms and Conditions" page states that users will "need to create a Home Depot account and provide certain personal information like your name, address, phone number, and email address."

 

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 and in furtherance of phishing. Respondent registered the disputed domain name with actual knowledge of Complainant's rights in the HOME DEPOT mark.

 

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 mimics Complainant's legitimate website and purports to be associated with Complainant; it displays Complainant's mark and information related to Complainant.

 

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 name incorporates Complainant's HOME DEPOT mark in its entirety and merely adds the ".onl" generic top-level domain ("gTLD"). This does not distinguish the disputed domain name from the mark under Policy ¶ 4(a)(i). See Dell Inc. v. Protection of Private Person, FA1606001681432 (Forum Aug. 1, 2016) ("A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs"); see also Abbott Labs v. Whois Svc., FA0903001254682 (Forum May 14, 2009) ("the addition of a gTLD is irrelevant in distinguishing a disputed domain name from a registered mark"); see also Twitter, Inc. v. Jie, FA2011001919786 (Forum Dec. 9, 2020) ("The Panel considers the disputed domain name [<twitter.luxe>] to be identical to Complainant's registered [TWITTER] trademark"). Thus the Panel finds that the disputed domain name is identical to Complainant's mark 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 "zheng xuejun". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).

 

Both the disputed domain name itself, and the content of the resolving website, falsely suggest that they are associated with Complainant. That is not a fair or legitimate use of the disputed domain name. Indeed, according to paragraph 2.5 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): "Fundamentally, a respondent's use of a domain name will not be considered 'fair' if it falsely suggests affiliation with the trademark owner …". See 201 Folsom Option JV, L.P. and 201 Folsom Acquisition, L.P. v. John Kirkpatrick, D2014-1359 (WIPO, Oct. 28, 2014); see also Qualcomm Incorporated v. Qualcomm Tech, FA 2004546 (Forum Aug. 17, 2022) (finding that a resolving website that "mimics Complainant's website, display[s] Complainant's mark, logo, and tagline; and it displays links to Complainant's own social media platforms" is neither a bona fide offering of goods or services, nor a legitimate non-commercial or fair use of the disputed domain name). Consequently the Panel finds that Respondent has failed to use the disputed domain name to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent lacks 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, consumers visiting the resolving website are likely to be confused as to whether Respondent and/or its website is affiliated in some way with Complainant; and/or the disputed domain name or the associated website are endorsed, authorized, or sponsored by Complainant, none of which are true. This is a form of bad faith use of the disputed domain name. See Bank of America Corp. v. Out Island Props., Inc., FA 154531 (Forum June 3, 2003) (bad faith established "[s]ince the disputed domain names contain entire versions of Complainant's marks and are used for something completely unrelated to their descriptive quality, a consumer searching for Complainant would become confused as to Complainant's affiliation with the resulting search engine website."). Thus the Panel finds bad faith registration and use per Policy ¶ 4(a)(iii).

 

Further, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the resolving website displays Complainant's mark and information related to Complainant. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); see also 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). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).

 

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 <homedepot.onl> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: May 7, 2024