Homer TLC, Inc. v. Abadaba S.A.
Claim Number: FA1310001526594
Complainant is Homer TLC, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Abadaba S.A. (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homedeput.com>, registered with Fabulos.com Pty Ltd.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 25, 2013; the National Arbitration Forum received payment on October 25, 2013.
On October 27, 2013, Fabulos.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <homedeput.com> domain name is registered with Fabulos.com Pty Ltd. and that Respondent is the current registrant of the name. Fabulos.com Pty Ltd. has verified that Respondent is bound by the Fabulos.com Pty 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 October 28, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 18, 2013 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@homedeput.com. Also on October 28, 2013, 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, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 19, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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
1. Respondent’s <homedeput.com> domain name is confusingly similar to Complainant’s HOME DEPOT mark.
2. Respondent does not have any rights or legitimate interests in the <homedeput.com> domain name.
3. Respondent registered and uses the <homedeput.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns the HOME DEPOT mark, registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 1,188,191 registered on January 26, 1982), and uses the mark in connection with home goods and services.
Respondent registered the <homedeput.com> domain name on September 20, 2002, and uses it to provide links to various third-party websites, some of which offer goods and services in direct competition with Complainant.
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(e), 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 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.”).
The Panel finds that Complainant has established rights in the HOME DEPOT mark under Policy ¶ 4(a)(i) through its registrations with the USPTO (e.g. Reg. No. 1,188,191 registered on January 26, 1982). The Panel notes that Respondent’s residence outside the United States is not a factor under a Policy analysis. See Scripps Networks, LLC v. chen wenjie, FA 1523127 (Nat. Arb. Forum Nov. 12, 2013) (“The Panel finds that Complainant’s USPTO registration establishes Complainant’s rights in the mark under Policy ¶ 4(a)(i), even despite the fact that Respondent appears to reside out of the United States.”).
Respondent’s <homedeput.com> domain name merely adds the irrelevant gTLD “.com” to the mark and includes a single-character modification to Complainant’s HOME DEPOT mark, changes that do not distinguish the disputed domain name from Complainant’s mark. See HomeVestors of Am., Inc. v. Sean Terry, FA 1523266 (Nat. Arb. Forum Nov. 11, 2013) (“[T]he Panel notes that panels have previously held that a domain name’s elimination of spaces found in the complainant’s mark and addition of a gTLD such as “.com” do not sufficiently differentiate the domain name from the complainant’s mark for the purposes of a confusing similarity analysis under Policy ¶ 4(a)(i).”); see also Orbitz Worldwide, LLC v. MGA LIMITED / mgaenterpriseslimited , FA 1515036 (Nat. Arb. Forum Oct. 4, 2013) (“Respondent’s <cheaptiekets.com> domain name is confusingly similar to Complainant’s CHEAPTICKETS.COM mark, because the domain name merely replaces the letter ‘c’ in the word “tickets” with the letter ‘e.’”). Thus, the Panel finds that Respondent’s <homedeput.com> domain name is confusingly similar to Complainant’s HOME DEPOT mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant contends that Respondent is not known by the <homedeput.com> domain name, and states that it has not licensed, authorized, permitted, or sponsored Respondent’s usage of the HOME DEPOT mark in a domain name. The WHOIS information indicates that “Abadaba S.A.” is the registrant of the domain name. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding 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). The Panel similarly finds that Respondent is not commonly known by the <homedeput.com> domain name under Policy ¶ 4(c)(ii).
Complainant further alleges that Respondent uses the <homedeput.com> domain name to promote generic links to various third-party websites, some of which compete directly with Complainant’s HOME DEPOT goods and services. The Panel notes that the <homedeput.com> domain name resolves to a website that features hyperlinks to Complainant’s own websites as well as links with headings such as “Kitchen Contractor,” “Kitchen Remodeling Ideas,” and “Home Appliances.” This competing use is not a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”). Thus the Panel finds that the <homedeput.com> domain name is not used for a Policy ¶ 4(c)(i) bona fide offering, or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges bad faith under 4(b)(ii), as Respondent has engaged in a pattern of bad faith use and registration. See Vanguard Trademark Holdings USA LLC v. Abadaba S.A., FA 1333290 (Nat. Arb. Forum Aug. 16, 2010); Finish Line, Inc. v. Abadaba S.A., FA 1442808 (Nat. Arb. Forum June 21, 2012); Target Brands, Inc. v. Abadaba S.A., FA 1505082 (Nat. Arb. Forum July 30, 2012). The Panel finds that the evidence of prior UDRP decisions resulting in the transfer of domain names from Respondent to the respective complainant is evidence of Policy ¶ 4(b)(ii) bad faith. See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations).
Complainant argues that Respondent’s hosting of competing hyperlinks on the <homedeput.com> domain name’s resolving webpages is bad faith commercial disruption of Complainant’s business. The Panel agrees and finds bad faith under Policy ¶ 4(b)(iii). See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Respondent is no doubt obtaining a commercial gain through the likelihood that Internet users may mistake Complainant as a sponsor of the hyperlinked content promoted through the disputed domain name’s website. See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that there was a likelihood that Internet users may believe that the complainant had authored or approved of the unrelated hyperlink advertisements viewable through the domain name’s website.) The Panel that Respondent’s hyperlinks create a likelihood of confusion for Respondent’s commercial gain, bad faith under Policy ¶ 4(b)(iv).
Complainant also argues that Respondent’s bad faith is evident through its typosquatting, or intentional misspelling, of the HOME DEPOT mark. The Panel agrees and finds that Respondent’s typosquatting is further evidence of Policy ¶ 4(a)(iii) bad faith. In Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007), the panel found that typosquatting could be found when the domain name incorporated nothing more than a minor typographical error to the mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <homedeput.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 25, 2013
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