Home Depot Product Authority, LLC v. PROXY PROTECTION LLC
Claim Number: FA1805001786278
Complainant is Home Depot Product Authority, LLC ("Complainant"), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is PROXY PROTECTION LLC ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lamahomedepot.com>, registered with DreamHost, LLC.
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 May 11, 2018; the Forum received payment on May 11, 2018.
On May 14, 2018, DreamHost, LLC confirmed by email to the Forum that the <lamahomedepot.com> domain name is registered with DreamHost, LLC and identified the current registrant of the name as Nguyen Thanh Luan, Vietnam. DreamHost, LLC has verified that the registrant is bound by the DreamHost, LLC 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 May 15, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 4, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration (including both the whois data and that provided in the registrar’s verification email) as technical, administrative, and billing contacts, and to postmaster@lamahomedepot.com. Also on May 15, 2018, 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 as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 6, 2018, 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
Complainant states that it is the world's largest home improvement specialty retailer and the fourth largest retailer in the United States, with worldwide sales of more than $100 billion. Complainant has more than 2,200 retail stores in the United States, Canada, and Mexico. Complainant and its predecessors in interest have used the HOME DEPOT and THE HOME DEPOT marks continuously since at least as early as 1979 in connection with home improvement retail store services and related goods and services. Complainant owns numerous U.S. trademark registrations for HOME DEPOT and related marks, and claims that the marks are famous.
The disputed domain name <lamahomedepot.com> was registered in March 2018. The domain name is being used for an online retail store website offering various home goods for sale in competition with Complainant. Complainant states that the website purports to be based in California, where Complainant operates more than 200 stores, and imitates Complainant's orange trade dress, both of which indicate that Respondent must have been aware of Complainant's marks when it registered the domain name. Complainant further alleges that the site appears be a fraudulent attempt to obtain personal and financial information from Complainant's potential customers. Complainant states that Respondent has no relationship with Complainant, has never requested nor received any authorization or permission to use Complainant's marks, and has never been commonly known by the disputed domain name.
Complainant contends, on the above grounds, that the disputed domain name is confusingly similar to Complainant's marks; that Respondent has no rights or legitimate interests in the domain name; and that the 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 confusingly similar 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 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 (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 disputed domain name <lamahomedepot.com> incorporates Complainant's registered HOME DEPOT mark, prefacing it with the letters "lama", omitting the space, and appending the ".com" top-level domain. These modifications do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Home Depot Product Authority, LLC v. Proxy Protection LLC, FA 1745839 (Forum Oct. 4, 2017) (finding <justinhomedepot.com> confusingly similar to HOME DEPOT); Homer TLC, Inc. v. Samson Lepcha / Lepcha LLC, FA 1645023 (Forum Nov. 25, 2015) (finding <drukhomedepot.com> confusingly similar to HOME DEPOT); Homer TLC, Inc. v. Bob Pham, FA 1556046 (Forum June 3, 2014) (finding <2fhomedepot.com> confusingly similar to HOME DEPOT); Homer TLC, Inc. v. Zongyao Hu, FA 1178650 (Forum May 22, 2008) (finding <acehomedepot.com> confusingly similar to HOME DEPOT). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
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 Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and is being used to promote products that compete with those offered by Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Home Depot Product Authority, LLC v. Proxy Protection LLC, FA 1745839, supra (finding lack of rights or legitimate interests where domain name incorporating HOME DEPOT mark was used for website displaying the mark and associated logo and offering competing products for sale); Homer TLC, Inc. v. Samson Lepcha / Lepcha LLC, supra (finding lack of rights or legitimate interests where domain name incorporating HOME DEPOT mark was used for website displaying the mark, mimicking Complainant's orange trade dress, and offering competing products for sale).
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 has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, 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 is using a domain name that incorporates Complainant's well-known trademark to promote a competing business, under circumstances strongly supporting an inference that Respondent's conduct is targeted directly at Complainant or its mark. See Home Depot Product Authority, LLC v. Proxy Protection LLC, FA 1745839, supra (finding bad faith registration and use under similar circumstances); Homer TLC, Inc. v. Samson Lepcha / Lepcha LLC, supra (same). 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 <lamahomedepot.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 7, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page