Complainant, Homer TLC, Inc., holds several trademark registrations for the HOME DEPOT mark with the United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 2,314,081 issued February 1, 2000), which have been used in connection with a wide variety home improvement products and services. In connection with its licensee, Complainant operates a chain of over 2,100 home improvement stores in the United States, Canada, and Mexico. Complainant employs over 355,000 people and has annual worldwide sales under the HOME DEPOT mark totaling $81.5 billion US dollars. In connection with its retail stores, Complainant has operated an informational and shopping website at the homedepot.com domain name since 1992. As a result of nationwide marketing and advertising promotion, Complainant’s HOME DEPOT mark has become a commonly known mark throughout the United States.
Respondent registered the homdepot.com domain name on January 30, 2007. Internet users who access this domain name are directed to a website that lists “sponsored links” and “related categories” for “Home Improvement Pros,” “Hardware Stores,” “Kitchen Cabinet Refacing,” and other similar goods and services, including links to the sites of Complainant’s competitors.
Turning first to the question of whether the domain name registered by Respondent was confusingly similar to a trademark in which Complainant has rights, the Panel noted that Respondent’s homdepot.com domain name was confusingly similar to Complainant’s HOME DEPOT mark pursuant to Policy ¶ 4(a)(i) because the domain name was simply a misspelled variation of the HOME DEPOT mark, as it differed from Complainant’s mark by omitting the letter “e” and a space. Thus, Respondent was taking advantage of a common typographical error, which was insufficient to avoid a finding of confusing similarity under Policy ¶ 4(a)(i). Furthermore, the addition of a top-level domain “.com” did not avoid a finding of confusing similarity under Policy ¶ 4(a)(i).
Turning next to the question of whether the Respondent had any rights or legitimate interests in the domain name at issue, the Panel noted that the Complainant had alleged that Respondent was not commonly known by homdepot.com domain name. The WHOIS information identified Respondent as “Web Master,” and Complainant had alleged that Respondent had no rights or legitimate interests in the HOME DEPOT mark. The Panel found no other evidence in the record suggesting that Respondent was commonly known by the disputed domain name. Therefore, the Panel found that Respondent was not commonly known by the homdepot.com domain name pursuant to Policy ¶ 4(c)(ii).
Furthermore, the Panel noted that Respondent was using the homdepot.com domain name to redirect Internet users to its website, which promoted “sponsored links” for various home improvement goods and services, including links to the sites of Complainant’s competitors. Presumably, Respondent received referral fees for each redirected Internet user. Thus, Respondent’s diversion of Complainant’s customers and potential customers did not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Addressing the question of whether the domain name at issue was registered and used in bad faith, the Panel noted that Respondent was using the homdepot.com domain name to redirect Internet users to a website that offered links to Respondent’s competitors. This use of the disputed domain name was likely to disrupt Complainant’s business by diverting business away from Complainant. Therefore, the Panel found that Respondent’s registration and use of the homdepot.com domain name constituted bad faith pursuant to Policy ¶ 4(b)(iii). Moreover, the Panel noted that Respondent’s use of the homdepot.com domain name, which was confusingly similar to Complainant’s HOME DEPOT mark, was likely to cause confusion among customers searching for Complainant’s home improvement goods or services. Indeed, Respondent presumably profited from this confusion by receiving referral fees for each Internet user it redirected to other websites. The Panel therefore found that such registration and use of the disputed domain name constituted bad faith pursuant to Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concluded that the homdepot.com domain name be transferred to Complainant.
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