Homer TLC, Inc. v. DN Manager / Whois-Privacy.Net Ltd
Claim Number: FA1506001623822
Complainant is Homer TLC, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is DN Manager / Whois-Privacy.Net Ltd (“Respondent”), Vanuatu.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <holmedepot.com>, registered with Fabulous.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 10, 2015; the Forum received payment on June 10, 2015.
On June 11, 2015, Fabulous.com Pty Ltd confirmed by e-mail to the Forum that the <holmedepot.com> domain name is registered with Fabulous.com Pty Ltd and that Respondent is the current registrant of the name. Fabulous.com Pty Ltd has verified that Respondent is bound by the Fabulous.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 June 17, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 7, 2015 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@holmedepot.com. Also on June 17, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On July 13, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Complainant states that it owns the registered trade mark THE HOME DEPOT, which was first used in commerce in 1979, for retail store services for a variety of home maintenance and improvement and garden products. Complainant employs some 330,000 employees in the United States. Its mark and products are well known and widely used.
According to Complainant, the disputed domain name is confusingly similar to its mark because it differs from the mark by only one character. This is a classical example of typosquatting. Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. It is not commonly known by the disputed domain name and was not licensed or authorized by Respondent to use its mark in a domain name. Respondent is not using the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. The disputed domain name redirects Internet users to Complainant’s own web site in violation of Complainant’s affiliate program. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent registered and is using the disputed domain name in bad faith because the web site at the disputed domain name displays Complainant’s mark and redirects users to Complainant’s web site in violation of Complainant’s affiliate program. Further, Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. Complainant cites UDRP precedents to support its position.
Finally, says Complainant, Respondent is a recalcitrant, serial cybersquatter / typosquatter.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for the name THE HOME DEPOT, dating back to 1979. Its marks are well-known.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2006.
The products and services offered by Complainant are widely used and well known.
Respondent is using the disputed domain name to resolve to web sites containing commercial links to some of Competitor’s competitors.
The web site at the disputed domain name features Complainant’s mark.
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 the disputed domain name is confusingly similar to Complainant’s mark because it differs from Complainant’s mark through removal of the word “the”, and adding the letter “L” and the generic top-level domain “.com”. See Buffalo News v. Barry, FA 146919 (Nat. Arb. Forum Mar. 31, 2003) (finding the respondent's <bufalonews.com> domain name confusingly similar to Complainant's THE BUFFALO NEWS mark); see also See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Neuberger Berman Inc. v. Jacobsen, D2000-0323 (WIPO June 12, 2000) (finding that the respondent’s <newbergerberman.com> domain name was confusingly similar to the complainant’s NEUBERGER BERMAN mark despite the slight difference in spelling); T.R. World Gym-IP, LLC v. D’Addio, FA 956501 (Nat. Arb. Forum May 22, 2007) (finding that the addition of the letter “s” to a registered trademark in a contested domain name is not enough to avoid a finding of confusing similarity under Policy ¶ 4(a)(i)).
Respondent is using the disputed domain name to resolve to a web page containing advertising links to services that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use. See 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”); see also H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use). Thus the Panel finds Respondent is not making a bona fide offering or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively. Further, Respondent is not authorized to use Complainant’s mark in a domain name and it is not commonly known by the disputed domain name.
Thus the Panel finds that the Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
As already noted, the resolving web page contains the Complainant’s mark, and advertising links pointing to services that compete with those of Complainant. The resolving web page prominently displays Complainant’s mark. Thus, Internet users are likely to believe that the resolving website is sponsored by or affiliated with Complainant. Respondent profits from pay-per-click fees. Prior panels have found that a respondent who creates a likelihood of confusion for commercial gain has engaged in bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also 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).
The Panel finds that a likelihood of confusion exists, that Respondent is commercially profiting in the process, and that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Further, the Panel finds that Respondent’s typosquatting behavior is itself evidence of bad faith under Policy ¶ 4(a)(iii). See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.); see also Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”); see also Dermalogica, Inc. v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com> domain name was a “simple misspelling” of the complainant's DERMALOGICA mark which indicated typosquatting and bad faith pursuant to 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 <holmedepot.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 14, 2015
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