Houzz Inc. v. Gabriella Garlo
Claim Number: FA2102001933594
Complainant is Houzz Inc. ("Complainant"), represented by Judd Lauter of Cooley LLP, California, USA. Respondent is Gabriella Garlo ("Respondent"), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <houzz.pro>, registered with NameCheap, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 25, 2021; the Forum received payment on February 25, 2021.
On February 25, 2021, NameCheap, Inc. confirmed by email to the Forum that the <houzz.pro> 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 March 1, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@houzz.pro. Also on March 1, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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, the Forum transmitted to the parties a Notification of Respondent Default.
On March 25, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the Forum's Supplemental Rules, and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Houzz operates an online platform for home remodeling and design, available via the web and as a mobile app. The platform has more than 40 million unique monthly visitors worldwide, and a directory of more than one million active home remodeling and design professionals. Complainant has used the HOUZZ mark in connection with this platform since 2008, and owns trademark registrations for HOUZZ and related marks in the United States, Brazil, and many other jurisdictions.
Respondent registered the disputed domain name <houzz.pro> via a privacy registration service in September 2020. The disputed domain name has at times redirected to a third-party website that advertises products that compete with those marketed by Complainant, and at other times has been used to display a parked page composed of pay-per-click links. In addition, the domain name is being offered for auction on a domain name marketplace website with a minimum bid of $500. Complainant states that Respondent is not commonly known by the disputed domain name and that Complainant has not authorized or licensed Respondent to use its marks.
Complainant contends on the above grounds that the disputed domain name <houzz.pro> is identical or confusingly similar to its HOUZZ mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is identical to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was 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."
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <houzz.pro> corresponds to Complainant's registered HOUZZ trademark, with the ".pro" top-level domain appended thereto. The addition of a top-level domain is normally irrelevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Houzz Inc. v. Constantin Asavinei / Arhitectural Interior Design, FA 1860814 (Forum Oct. 2, 2019) (finding <houzz.pro> confusingly similar to HOUZZ); Houzz Inc. v. Tiaratri Adaninggar Candradewi Putro Sonya, FA 1730197 (Forum June 12, 2017) (finding <houzz.us> identical to HOUZZ); Houzz Inc. v. Qeqe Jr / Stars Media, FA 1730122 (Forum May 31, 2017) (finding <houzz.website> identical to HOUZZ). The Panel considers the disputed domain name to be identical to Complainant's registered mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. Its sole apparent uses have been to redirect to a competitor of Complainant and to display pay-per-click links. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Priceline.com LLC v. Domain Administrator / Fundacion Privacy Services LTD, FA 1868073 (Forum Nov. 29, 2019) (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register a domain name corresponding to Complainant's registered mark, and is offering the domain name for sale at a price far in excess of Respondent's out-of-pocket costs. Respondent has used the domain name to redirect users to a competitor of Complainant and for a parked page composed of display pay-per-click links. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Laboratory Corp. of America Holdings v. Hulmiho Ukolen / Poste Restante, FA 1916228 (Forum Nov. 11, 2020) (privacy registration service, offer for sale, and redirection to unrelated websites) Priceline.com LLC v. Domain Administrator / Fundacion Privacy Services LTD, supra (privacy registration service, redirection to competitors, and pay-per-click links). The Panel infers that Respondent intentionally targeted Complainant and its mark, taking into account the distinctive spelling of Complainant's mark and Respondent's history of prior adverse determinations in previous proceedings under the Policy. See, e.g., Novartis AG v. Gabriella Garlo, No. 103546 (Czech Arb. Ct. Mar. 16, 2021) (ordering transfer of <novartis.careers>); Applebee's Restaurants LLC v. WhoisGuard, Inc. / Gabriella Garlo, D2020-3002 (WIPO Feb. 23, 2021) (ordering transfer of <applebees.coupons> and <applebees.deals>); Sunbelt Rentals, Inc. v. Gabriella Garlo, FA 1927104 (Forum Feb. 1, 2021) (ordering transfer of <sunbeltrentals.careers>); Sodexo v. WhoisGuard Protected, WhoisGuard, Inc. / Gabriella Garlo, D2020-2706 (WIPO Jan. 4, 2021) (ordering transfer of <sodexo.careers>); Rheem Manufacturing Co. v. WhoisGuard, Inc. / Gabriella Garlo, D2020-2115 (WIPO Oct. 8, 2020) (ordering transfer of <rheem.support>). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <houzz.pro> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 29, 2021
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