HomeGoods, Inc. v. Vasun Yathip
Claim Number: FA1007001336891
PARTIES
Complainant is HomeGoods, Inc.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <home-goods.us>,
registered with NAME.COM.
PANEL
The undersigned certifies that she has acted independently and
impartially and that to the best of her knowledge she has no known conflict in
serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as
Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
(the “Forum”) electronically July 21, 2010; the Forum received a hard copy of
the Complaint July 22, 2010.
On July 22, 2010, NAME.COM confirmed by e-mail to the Forum that
the <home-goods.us> domain name is registered with NAME.COM and that Respondent is the
current registrant of the name. NAME.COM
verified that Respondent is bound by the NAME.COM registration agreement and
thereby has agreed to resolve domain-name disputes brought by third parties in
accordance with the U. S. Department of Commerce’s usTLD Dispute Resolution
Policy (the “Policy”).
On July 26, 2010, a Notification of Complaint and Commencement of
Administrative Proceeding (the “Commencement Notification”), setting a deadline
of August 16, 2010, by which Respondent could file a Response to the Complaint,
was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules
for usTLD Dispute Resolution Policy (the “Rules”).
Having received no Response from Respondent, the Forum transmitted to
the parties a Notification of Respondent Default.
On August 24, 2010, pursuant to Complainant’s request to have the
dispute decided by a single-member Panel, the Forum appointed Hon. Carolyn
Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel
(the “Panel”) finds that the Forum discharged its responsibility under
Paragraph 2(a) of the Rules. Therefore,
the Panel may issue its decision based on the documents submitted and in
accordance with the Policy, the 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
1. The domain name that Respondent registered, <home-goods.us>, is confusingly similar to Complainant’s HOMEGOODS mark.
2.
Respondent has no rights to or legitimate
interests in the <home-goods.us> domain name.
3.
Respondent registered and used the <home-goods.us>
domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant, HomeGoods, Inc.,
offers home fashion products under its HOMEGOODS mark. Complainant owns multiple trademark
registrations with the United States Patent and Trademark Office (“USPTO”) for
its HOMEGOODS mark (e.g., Reg. No.
2,692,830 issued March 4, 2003).
Respondent, Vasun Yathip, registered the <home-goods.us>
domain name May 26, 2009. The disputed
domain name resolves to a website that sells home fashion products that seek to
compete directly with Complainant’s products.
DISCUSSION
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.”
Given Respondent's
failure to submit a Response, the Panel shall decide this administrative
proceeding on the basis of the Complainant's undisputed representations
pursuant to Paragraphs 5(f), 14(a) and 15(a) of the Rules and will draw such
inferences as the Panel considers appropriate pursuant to Paragraph 14(b) of
the Rules. The Panel is entitled
to accept all reasonable allegations and inferences set forth in the Complaint
as true unless the evidence is clearly contradictory. See Vertical
Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb.
Forum July 31, 2000) (holding that the respondent’s failure to respond allows
all reasonable inferences of fact in the allegations of the complaint to be
deemed true); see also Talk City,
Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a
response, it is appropriate to accept as true all allegations of the
Complaint.”).
Paragraph 4(a) of the Policy requires Complainant to 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 the
Respondent is identical or confusingly similar to a trademark or service mark
in which the 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 or is
being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution
Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent
as applicable in rendering its decision.
Identical
to and/or Confusingly Similar
Complainant contends that it has established
rights in its HOMEGOODS mark under Policy ¶ 4(a)(i). In Miller Brewing
Complainant claims Respondent’s <home-goods.us>
domain name is confusingly similar to Complainant’s HOMEGOODS mark. In Health Devices Corp. v.
The disputed domain name is confusingly similar to Complainant’s protected mark; the Panel finds that Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights
to or Legitimate Interests
Complainant alleged
that Respondent has no rights to or legitimate interests in the <home-goods.us>
domain name. Once Complainant makes a prima facie case to support its
allegations under Policy ¶ 4(a)(ii), the burden of
proof shifts to Respondent to show that it does have rights or legitimate
interests. The Panel finds that Complainant
made a prima facie case. Respondent’s failure to respond to the
Complaint allows the Panel to infer that Respondent has no rights or legitimate
interests in the disputed domain name.
However, the Panel still examines the record to determine whether
Respondent has rights or legitimate interests in the disputed domain name under
Policy ¶ 4(c). See Vanguard Group, Inc. v. Collazo,
FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the
respondent failed to submit a Response, “Complainant’s submission has gone
unopposed and its arguments undisputed.
In the absence of a Response, the Panel accepts as true all reasonable
allegations . . . unless clearly contradicted by the evidence.”); see also Domtar, Inc. v. Theriault., FA
1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a
complainant has made out a prima facie case
in support of its allegations, the burden shifts to respondent to show that it
does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the
[UDRP].”).
No evidence in the record suggests that Respondent owns any service marks or trademarks that reflect the <home-goods.us> domain name. Therefore the Panel finds that Respondent does not have rights and legitimate interests pursuant to Policy ¶ 4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002 (finding that there was no evidence that Respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.com> domain name); see also Pepsico, Inc. v. Becky, FA 117014 (Nat. Arb. Forum Sep. 3, 2002) (holding that because Respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).
Complainant also contends that Respondent is not commonly known by the <home-goods.us> domain name under Policy ¶ 4(c)(iii). In St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007), the panel concluded that a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name. Similarly, in Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006), the panel held that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name. In this case, the WHOIS information identifies the domain name registrant as “Vasun Yathip,” which the Panel determines is not similar to Respondent’s <home-goods.us> domain name. Moreover, the Panel has examined the record and has failed to find any evidence that would suggest that Respondent is commonly known by the disputed domain name. As Respondent has failed to provide such evidence, the Panel holds that Respondent is not commonly known by its <home-goods.us> domain name pursuant to Policy ¶ 4(c)(iii).
Complainant asserts that Respondent uses its <home-goods.us> domain name to resolve to a website that offers home fashion products that directly compete with Complainant’s products. The panels in Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) and Or. State Bar v. A Special Day, Inc., FA 99657 (Nat. Arb. Forum Dec. 4, 2001) found that a respondent is neither making a bona fide offering of goods or services nor a legitimate noncommercial or fair use of a disputed domain name when a respondent uses the disputed domain name to resolve to a website that offers products in competition with a complainant’s products. This Panel finds as well that Respondent’s similar use of the <home-goods.us> domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(ii) and that it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iv).
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain name; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration
and Use in Bad Faith
Complainant lastly claims that Respondent registered and used the disputed domain name in bad faith. Complainant alleged that Respondent’s use of the <home-goods.us> domain name disrupts Complainant’s home fashion business, which supports findings of bad faith registration and use under Policy ¶ 4(b)(iii). In DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) and Spark Networks PLC v. Houlihan, FA 653476 (Nat. Arb. Forum Apr. 18, 2006), the panels determined that a respondent’s use of a domain name disrupted a complainant’s business when the website resolving from the confusingly similar disputed domain name offered products that competed with those of the complainant. This Panel agrees that Respondent’s use of the <home-goods.us> domain name in this case also disrupts Complainant’s home fashion business and, therefore, the Panel finds that Respondent’s registration and use of the disputed domain name is in bad faith under Policy ¶ 4(b)(iii).
Complainant also alleges that Respondent’s use of the <home-goods.us> domain name creates a likelihood of confusion as to Complainant’s affiliation with the disputed domain name and the resolving website, which, Complainant argues, is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). In Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003), the panel found that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to UDRP ¶ 4(b)(iv). In Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000), the panel found bad faith registration and use pursuant to UDRP ¶ 4(b)(iv) where the domain name resolved to a website that offered similar products as those sold under the complainant’s famous mark. This Panel as well finds that such use by Respondent of the <home-goods.us> domain name constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
The Panel finds that Respondent registered and used the disputed domain name in bad faith; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(iii).
DECISION
Having established all three elements required under the usTLD Policy, the Panel concludes that the requested relief shall be GRANTED.
Accordingly, it is Ordered that the <home-goods.us> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks
Johnson, Panelist
Dated: September 7, 2010
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