Home Depot Product Authority, LLC v. Domain Administrator / Fundacion Privacy Services LTD
Claim Number: FA1810001813625
Complainant is Home Depot Product Authority, LLC (“Complainant”), represented by Richard J. Groos of King & Spalding LLP, Texas, USA. Respondent is Domain Administrator / Fundacion Privacy Services LTD (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <homedepotprotect.com>, registered with Media Elite Holdings Limited.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 25, 2018; the Forum received payment on October 25, 2018.
On October 29, 2018, Media Elite Holdings Limited confirmed by e-mail to the Forum that the <homedepotprotect.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 29, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 19, 2018 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@homedepotprotect.com. Also on October 29, 2018, 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 November 20, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, Home Depot Product Authority, LLC, operates the world’s largest home improvement specialty retailer. Complainant has rights in the HOME DEPOT mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,314,081 registered Feb. 1, 2000). See Compl. Ex. B. Respondent’s <homedepotprotect.com> domain name is confusingly similar to Complainant’s mark because Respondent includes the HOME DEPOT mark in its entirety, adds the generic term “protect”, and adds a “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <homedepotprotect.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to redirect to a series of domain names that ultimately resolve to the websites of Complainant’s competitors.
Respondent registered and uses the <homedepotprotect.com> domain name in bad faith. Respondent attempts to disrupt Complainant’s business by redirecting users to Complainant’s competitors. Further, Respondent had actual knowledge of Complainant’s rights in the HOME DEPOT mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on June 13, 2018.
The Panel finds that the disputed domain name is confusingly similar to Complaint’s valid and subsisting trademark; that Respondent lacks any rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 Panel finds that the dispute domain name, <homedepotprotect.com>, is confusingly similar to Complainant’s valid and subsisting trademark, HOME DEPOT. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely deleting a space from Complainant’s exact trademark and adding the generic word “protect” and the g TLD “.com.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the dispute domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name.
Furthermore, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use. Rather, Respondent apparently uses the disputed domain name to redirect to a series of domain names that ultimately resolve to the websites of Complainant’s competitors.
As such, the Panel finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant argues that Respondent registered and uses the disputed domain name in bad faith because Respondent disrupts Complainant’s business by redirecting users to Complainant’s competitors. Use of a disputed domain to redirect users to a complainant’s competitor may evince bad faith under Policy ¶ 4(b)(iii). See Amazon Technologies, Inc. v. Tammy Caffey, FA1408001576228 (Forum Sept. 22, 2014) (“Respondent’s promotion of Complainant’s competitors on the <kindlestore.com> website disrupts Complainant business and demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iii).”); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”). Complainant provided a printout of one of the websites to which the disputed domain name redirects. See Compl. Ex. D. The Panel finds that Respondent uses the disputed domain name to disrupt Complainant’s business.
Further, Complainant claims that Respondent had actual knowledge of Complainant’s rights in the HOME DEPOT mark prior to registering the disputed domain name. Given the fame of Complainant’s mark and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s trademark and its rights therein.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <homedepotprotect.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: November 21, 2018
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