DECISION

 

Home Depot Product Authority, LLC v. Jack D McFarland

Claim Number: FA2506002162988

 

PARTIES

Complainant is Home Depot Product Authority, LLC ("Complainant"), represented by Sabina A. Vayner of Greenberg Traurig, LLP, Georgia, USA. Respondent is Jack D McFarland ("Respondent"), Oklahoma, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <everbiltshop.com>, registered with Gname.com Pte. Ltd.

 

PANEL

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.

 

James Bridgeman SC as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on June 26, 2025; Forum received payment on June 26, 2025.

 

On June 29, 2025, Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <everbiltshop.com> domain name is registered with Gname.com Pte. Ltd. and that Respondent is the current registrant of the name. Gname.com Pte. Ltd. has verified that Respondent is bound by the Gname.com Pte. Ltd. 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 July 7, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 28, 2025 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@everbiltshop.com. Also on July 7, 2025, 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 July 29, 2025 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed James Bridgeman SC, 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 disputed domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant claims rights in the EVERBILT trademark based on its ownership of the portfolio of trademark registrations described below and extensive and continuous use of the mark since at least 2011.

 

Complainant submits that it was founded in 1978; it is headquartered in Atlanta, Georgia; it operates over 2,300 stores across the U.S., Canada, and Mexico; and in fiscal year 2024, it reported net sales of $159.5 billion. In this regard Complainant refers to the content of its Annual Report for the year 2024 which is exhibited in an annex to the Complaint.

 

Furthermore, Complainant submits that it maintains a robust online presence through its website at <www.homedepot.com> which has been active since at least 1992. Complainant refers to a screen capture of pages from its website which are exhibited in an annex to the Complaint. The webpages display and offer for sale the product range offered under the EVERBILT mark. Complainant asserts that the product range is a key component of its portfolio of brands.

 

The exhibited screen capture illustrates that the EVERBILT mark is applied to a range of Complainant's products including hardware (e.g., screws, hinges, brackets), storage and organization systems, plumbing and building materials, tools and accessories.

 

Firstly, Complainant argues that the disputed domain name <everbiltshop.com> is confusingly similar to the EVERBILT mark because it incorporates the mark in its entirety.

 

Complainant argues that the addition of the descriptive term "shop", which is a reference to Complainant's retail business, does not prevent a finding of confusing similarity between the disputed domain name and the EVERBILT mark, and submits that many panels established under the Policy have found that the addition of a term that is descriptive of a complainant's business to an infringing domain name does not mitigate confusion, but instead adds to it. See e.g., Morgan Stanley v. PN Energy llc PN, FA 2055768 (Forum Aug. 25, 2023) (noting that the <morganstanleycapitalinternational.com> domain name was confusingly similar to the MORGAN STANLEY mark because the infringing domain name merely added the descriptive terms "capital" and "international" and the addition of descriptive terms is insufficient to distinguish the infringing domain name from complainant's mark).

 

It is further argued that the generic Top-Level Domain ("gTLD") extension <.com> is irrelevant to the similarity analysis because Top-Level Domain extensions are a required element of all domain names.

 

Secondly, Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name arguing that

·       there is no evidence that the Respondent is commonly known by the name "everbiltshop";

·       Respondent is not authorized by Complainant to use the EVERBILT mark; and

·       the screen capture of the website to which the disputed domain name resolves illustrates that Respondent is purporting to promote goods that directly compete with Complainant's offerings.

 

Furthermore, Complainant submits that it appears likely that Respondent is not selling or offering any legitimate goods for sale on the exhibited website, but instead is using the disputed domain name and resolving website to impersonate Complainant and its EVERBILT mark for the purpose of fraudulent activities.

 

Complainant contends that fraudulent nature of Respondent's actions is evidenced directly by Respondent's use of Complainant's EVERBILT logo at the top of the exhibited website and Respondent's purported sale of Complainant's exclusive EVERBILT-branded products for deeply discounted prices.

 

Complainant asserts that the website to which the disputed domain name resolves may be fraudulent, impersonating Complainant intending to deceive consumers.

 

Thirdly Complainant alleges that the disputed domain name was registered and is being used in bad faith arguing that Respondent had actual or constructive knowledge of Complainant's registered trademark rights at the time of registration of the disputed domain name.

 

It is argued that the disputed domain name was registered on March 6, 2025, long after Complainant had established its registered trademark rights in the EVERBILT mark in December 5, 2017.

 

Complainant further argues that the descriptive word "shop" which is appended to the EVERBILT mark in the disputed domain name is a descriptive term that refers to Complainant's business.

 

Additionally it is submitted that the exhibited screen capture shows that the disputed domain name resolves to an active website that prominently features a logo that is nearly identical to Complainant's EVERBILT logo. Respondent's website offers products similar or identical to those sold under the EVERBILT brand, including closet and garage organization systems. It is argued that this further suggests an intent by Respondent to mislead consumers.

 

Complainant further argues that it is likely that Respondent is not actually engaged in the sale of any legitimate products for sale but is instead using the disputed domain name to create the false impression that Respondent is Complainant or is officially connected to Complainant and its EVERBILT brand.

 

It is further alleged that Respondent is using the disputed domain name within the address of the exhibited website intending to deceive and collect information from potential customers and other members of the public who mistakenly visit and attempt to purchase products believing Respondent's website to be operated by, or affiliated with Complainant, which constitutes bad faith use and registration under the Policy. See Indeed, Inc. v. JOSENILSON ALVES BELTRAO, FA 1814506 (Forum Dec. 17, 2018) ("Use of a domain name to create a false impression of affiliation with a complainant in order to phish for users' information is behavior indicative of bad faith registration and use per Policy ¶ 4(b)(iv).").

 

In conclusion, Complainant submits that Respondent's use of a privacy shield to obscure Respondent's identity on the Registrar's published WhoIs for the disputed domain name is further evidence of bad faith, citing Fair Isaac Corporation v. ife Ogougbemi, FA 2145972 (Forum Apr. 14, 2025) ("Respondent used a privacy registration service to register a domain name incorporating Complainant's well-known mark, and is using the domain name and mark to promote related and likely competing services. Such conduct is indicative of bad faith registration and use under the Policy.").

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant is a home improvement retailer and is the owner of the EVERBILT trademark for which it holds the following portfolio of registrations.

·       United States registered trademark EVERBILT, registration number 5,351,057, registered on the Principal Register on December 5, 2017 for goods in international class 6;

·       United States registered trademark EVERBILT, registration number 5,355,592 registered on the Principal Register on December 12, 2017 for goods in international class 20;

·       United States registered trademark EVERBILT, registration number 5,757,875, registered on the Principal Register on May 21, 2019 for goods in international class 20; and

·       United States registered trademark EVERBILT 6,400,102, registered on the Principal Register on June 29, 2021 for goods in international classes 6, 7, 9, 11, 16, 17, 19, 20, 21, 24 and 25.

 

The disputed domain name was registered on March 6, 2025, and resolves to a website offering Complainants goods at discounted prices.

 

There is no information available about Respondent, except for that provided in the Complaint, the Registrar's WhoIs and the information provided by the Registrar in response to the request by Forum for details of the registration of the disputed domain name for the purposes of this proceeding.

 

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

Complainant has provided uncontested convincing evidence of its rights in the EVERBILT trademark established by its ownership of the abovementioned trademark registrations and extensive use of the mark to sell a range of Complainant's products including hardware, storage and organization systems, plumbing and building materials, tools and accessories.

 

The disputed domain name <everbiltshop.com> is composed of Complainant's mark in its entirety, in combination with the generic word "shop" and the Top-Level Domain (" gTLD") extension <.com>.

 

It is well established that it is sufficient for a complainant to establish that the domain name at issue contains the mark relied upon in its entirety, to satisfy the first element of the test in Policy ¶ 4(a)(i).

 

In the circumstances of this Complaint the generic word "shop" within the disputed domain name does not prevent a finding of confusing similarity with the EVERBILT mark; and neither does the gTLD extension <.com> because it would be considered by Internet users to be a necessary technical element for a domain name.

 

This Panel finds therefore that the disputed domain name is identical to the EVERBILT mark in which Complainant has rights and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has made out a prima facie case that the Respondent has no rights legitimate interests in the disputed domain name as set out in Complainant's detailed submissions above. Respondent is using Complainant's trademark within the disputed domain name to lure and misdirect Internet traffic to his website on which he purports to sell Complainant's products at discounted prices. He does not disclose his identity on the Registrar's WhoIs or on the website to which it resolves. There is no evidence that he has any association with the word or mark EVERBILT or the disputed domain name and there is no evidence that he is carrying on any business.

 

It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.

 

Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name.

 

Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant's registered trademark EVERBILT mark is clearly recognizable as the initial, dominant and only distinctive element within the disputed domain name.

 

Complainant's registered service mark rights in the mark long predate the registration of the disputed domain name. The earliest trademark registration relied upon by Complainant dates back to December 5, 2017, whereas the disputed domain name was not registered until March 6, 2025.

 

It is improbable that the registrant of the disputed domain name was unaware of Complainant's mark when the disputed domain name was chosen and registered.

 

On the balance of probabilities, the registrant of the disputed domain name added the element "shop" to the EVERBILT mark to create the disputed domain name inferring that it relates to the retail sale of Complainant's branded products.

 

There appears to be therefore no plausible reason for registering the disputed domain name other than to create an association with Complainant and its EVERBILT mark.

 

On the balance of probabilities, therefore, this Panel finds that the disputed domain name was in fact chosen and registered with Complainant's mark in mind with the intention of taking predatory advantage of Complainant's rights and goodwill in the EVERBILT mark.

 

The uncontested evidence in the form of the screen capture of the website to which the disputed domain name resolves shows that Respondent purporting to offer Complainant's own EVENTBILT branded closet and garage organization products, furniture, hardware, and bathroom furnishing. Complainant's EVERBILT mark appears prominently on the banner of the landing page of Respondent's website, in the form of a logo which is similar to Complainant's own logo.

 

Furthermore, Respondent does not distinguish itself from Complainant and its business in any way. By displaying the EVERBILT mark prominently on the landing page, and displaying images of only Complainant's products, albeit at significantly discounted prices, the exhibited website creates the impression that it is owned by, or has some connection with Complainant.

 

Respondent does not identify itself on the exhibited website, nor does it state or infer in any way that it has no connection with Complainant.

 

Also of great concern in the circumstances described above is that Respondent invites Internet users to provide their personal details to sign up for a newsletter and open an account with payment options.

 

Respondent's use of Complainant's trademark within the disputed domain name as the address of the resolving website is on the balance of probabilities intentionally intended to attract and confuse Internet users and cause them to divert their Internet traffic intended for Complainant and misdirect it to Respondent's website by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's web site. Such use constitutes bad faith for the purposes of the Policy.

 

Respondent's registration of the disputed domain name using a privacy shield to conceal his identity is further supportive of a finding of bad faith in the circumstances outlined above.

 

As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has succeeded in the third element of the test in 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 <everbiltshop.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

________________________________

 

James Bridgeman SC, Panelist

Dated: 30 July 2025