DECISION

 

Home Depot Product Authority, LLC v. alan wacker

Claim Number: FA2409002116351

 

PARTIES

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

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <homdpotcomsurveys.org>, 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.

 

Héctor Ariel Manoff as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 19, 2024; Forum received payment on September 19, 2024.

 

On September 19, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <homdpotcomsurveys.org> 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 September 20, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 10, 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@homdpotcomsurveys.org. Also on September 20, 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 October 11, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Héctor Ariel Manoff 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

1- Home Depot Product Authority, LLC is the owner of the famous HOME DEPOT and THE HOME DEPOT trademarks.

2- Complainant has used its trademarks at least since 1979 in connection with home improvement retail store services, tools, and related goods and services.

3- Home Depot owns numerous U.S. federal registrations for its HOME DEPOT Marks.

4- Home Depot has registered the domain name homedepot.com in 1992 and it is used in connection with the advertising and sale of its products and services on the Internet.

5- The disputed domain name incorporates Complainant's HOME DEPOT marks in its entirety (with some purposeful misspellings), merely adding the generic words "comsurveys" and the ".org" generic top-level domain ("gTLD").

6- Respondent has no rights or legitimate interest in the disputed domain name.

7- Respondent has never received authorization from Complainant to use HOME DEPOT marks.

8- The <homdpotcomsurveys.org> domain name directs to a website that was designed to mislead users into believing that they have reached Complainant's website.

9- The www.homdpotcomsurveys.org website also includes sponsored advertisements that redirect Internet users to websites that are not related to Home Depot's services.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant, Home Depot Product Authority, LLC, owns the famous trademarks HOME DEPOT and THE HOME DEPOT and has used them in connection with home improvement retail store services, tools, and related goods and services since 1979. Complainant also operates the domain name <www. homedepot.com>, which is used in connection with the advertising and sale of its products and services. Respondent has registered the domain name <homdpotcomsurveys.org> in October 2023 and it is being used in bad faith.

 

 

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 Panel finds that the disputed domain name, <homdpotcomsurveys.org>, is nearly identical and confusingly similar to Complainant's HOME DEPOT trademark and domain <homedepot.com>.

 

The only difference is the omission of two letters "e". The Panel concludes that the domain name is a misspelled version of Complainant's trademark and that this slight difference can lead the consumers into confusion about the services identified. See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (stating, "Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate."). See also Lucasfilm Entertainment Company Ltd. LLC v George Ring, FA 1673825 (Forum June 7, 2016) (finding that, although a respondent's domain name <lukasfilm.com> incorporated the LUCASFILM mark of another and merely substituted a 'k' for the 'c,' it was nonetheless confusingly similar to that mark).

 

The disputed domain name <homdpotcomsurveys.org> incorporates Complainant's HOME DEPOT mark and adds the generic terms "com" and "surveys" along with the generic top-level domain ("gTLD") ".ORG".

 

The Panel finds that the term HOME DEPOT is a fanciful and arbitrary term in relation to Complainant's services and that it is clear that Respondent knew it belonged to Complainant. Respondent has just added two generic words. The Panel finds that the domain name is confusingly similar to Complainant's mark since the additional elements are not sufficiently distinctive. (See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant's entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy); see also, Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognizable 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.").

 

The Panel finds that the domain name is almost identical and confusingly similar to Complainant marks under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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.").

 

The Panel finds that Respondent is not commonly known by the <homdpotcomsurveys.org> domain name. Under Policy ¶ 4(c)(ii), relevant WHOIS information, among other evidence, may demonstrate that Respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA 1626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named "Fred Wallace" as registrant of the disputed domain name). In this case the identity of the Respondent does not reflect that Respondent is commonly known by the domain name).

 

Complainant has not given authorization to use the HOME DEPOT mark or to register any domain name containing the HOME DEPOT marks. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) ("lack of evidence in the record to indicate a respondent is authorized to use [the] complainant's mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)").

 

In addition, Respondent has neither filed a response nor submitted evidence to prove that Respondent has any trademark rights in the <homdpotcomsurveys.org> domain name.

 

The evidence submitted by Complainant shows that Respondent's use of the disputed domain name is not a bona fide offering of goods. (Annex D). The <homdpotcomsurveys.org> domain name directs to a website that was designed to mislead users into believing that they have reached Complainant's website.

 

The disputed domain name also includes sponsored advertisements that redirect Internet users to websites that are not related to Home Depot's services.

 

The <homdpotcomsurveys.org> domain name appears to direct to a website for a business called "<Www.HomeDepot.Com/Survey>," which includes information regarding how to enter into a Home Depot survey.

 

Thus, the use done by Respondent is not a legitimate use since it could lead the consumers into confusion with respect to the origin of the goods involved.

 

In addition, the disputed domain name <homdpotcomsurveys.org> includes a misspelling of Complainant's marks omitting two letters "e".

 

Prior Panels have considered that this typosquatting is evidence of a Respondent's lack of rights and legitimate interests. See Warner Bros. Entertainment Inc. v. John Mc Lean Bilog, FA 2095217. ("Next, by dropping the final "m" off the end of the common ".com" top-level domain, Respondent is engaging in typosquatting, which is the intentional misspelling of a protected trademark to take advantage of typing errors made by Internet users seeking the web sites of the owners of the mark. It is true that the letter "m" is not dropped from Complainant's registered mark in this case, but UDRP panels have held that dropping the "m" from the expected gTLD ".com" still qualifies as typosquatting."). See also Teavana Corp v. Lee Sam Lee Sam, FA 1419368 (Forum Feb. 22, 2012) (finding that removing the letter "m" from the ".com" suffix is evidence of a respondent's lack of rights and legitimate interests as it constitutes typosquatting), AccountNow, Inc. v. ME New Enterprise, FA 1417493 (Forum Jan. 17, 2012) (finding that Respondent did not have rights and legitimate interests in the domain name where Respondent was capitalizing on the misspelling of ".com.").

 

Therefore, the Panel agrees that Respondent is not commonly known by the disputed domain name and does not have legitimate interest under Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

This Panel finds that Complainants have registered and used the HOME DEPOT marks for many years along with the domain name <homedepot.com>; all before the date on which the disputed domain name was registered (October 2023).

 

The registration of the domain name revels bad faith since it is almost identical to the Complainant's trademarks and domain name. The only difference is a purposely spelling mistake and the addition of generic words.

 

The Panel find that it is clear that the domain name was registered with Complainant's mark in mind so registration was done in bad faith.

 

In addition, the domain name is used in bad faith. The <homdpotcomsurveys.org> website is used to lead the consumers into confusion and for phishing customers to provide personal information. (Exhibit D). The website appears to direct to a website for a business called "<Www.HomeDepot.Com/Survey>," which includes information regarding how to enter into a Home Depot survey.

 

Consumers might be led into confusion by believing they are entering a survey which belongs to Complainant.

 

The Panel determines that Respondent registered and used the disputed domain name in 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 <homdpotcomsurveys.org> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Héctor Ariel Manoff, Panelist

Dated: October 17, 2024