The Complainant is Ogalas Unlimited trading as Home Store and More, Ireland, represented by Acuatus, Ireland.
The Respondent is WhoisGuard Protected, WhoisGuard Inc, Panama / Oliver Evans, HOME STORE AND MORE LIMITED, United Kingdom.
The disputed domain name <homestore24.net> is registered with NameCheap, Inc. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 31, 2020. On August 31, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 31, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 1, 2020 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 4, 2020.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 11, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 1, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 5, 2020.
The Center appointed Evan D. Brown as the sole panelist in this matter on October 21, 2020. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
The Complainant is in the business of providing homeware retail services, and is according to the Complaint “one of Ireland’s leading independent homeware retailers” with two dozen shops and over 600 employees. It does business primarily in the Republic of Ireland and the United Kingdom. It owns the trademark HOME STORE AND MORE, which is the subject of several registrations, including European Union Registration No. 017302811, registered on February 16, 2018 and Irish trademark registration 238822 for HOME STORE AND MORE registered February 20, 2007.
The disputed domain name was registered on April 20, 2020. The Respondent has set up a website at the disputed domain name that includes a description of the Complainant’s background information and borrows their main contact details in addition to the Complainant’s VAT and Company Numbers, and purports to offer goods for sale. The Complainant characterizes the Respondent’s conduct in these respects as an attempt to “masquerade” as the Complainant and deceive customers (of which the Complainant claims there is a documented case).
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s trademark; that the Respondent has no 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.
The Respondent did not reply to the Complainant’s contentions.
To succeed, the Complainant must demonstrate that all of the elements listed in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
The Panel finds that all three of these elements have been met in this case.
The Complainant has rights in the mark HOME STORE AND MORE, evidenced by the registration certificates for that mark. The disputed domain name, for purposes of this first element, is confusingly similar to the Complainant’s mark. The addition of “24” within the disputed domain name does not prevent a finding of confusing similarity. Accordingly, the Complainant has succeeded under this first element of the Policy.
The Panel evaluates this element of the Policy by first looking to see whether the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. If the Complainant makes that showing, the burden of demonstrating rights or legitimate interests shifts to the Respondent.
On this point, the Complainant asserts that:
- the Complainant is not aware of any evidence that the Respondent is commonly known by the HOME STORE AND MORE mark or any similar mark;
- the Complainant has not granted a license to or otherwise permitted the Respondent to use the HOME STORE AND MORE mark;
- there is no affiliation, connection or commercial relationship between the Complainant and the Respondent;
- there is no evidence that the Respondent has used or prepared to use the disputed domain name in connection with a bona fide offering of goods or services; and
- the Respondent is using the disputed domain name to take advantage of the Complainant’s reputation by confusing Internet users into thinking they are dealing with the Complainant – in particular by lifting parts of the Complainant’s contact details and misappropriating them into the website at the disputed domain name.
The Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in respect of the disputed domain name. By failing to respond to the Complaint, the Respondent did not discharge its burden to demonstrate rights or legitimate interests. And no other facts in the record tip the balance in the Respondent’s favor. Accordingly, the Complainant has established this second element of the Policy.
The Policy requires a complainant to establish that the domain name was registered and is being used in bad faith. The Policy describes several non-exhaustive circumstances demonstrating a respondent’s bad faith use and registration. Under paragraph 4(b)(iv) of the Policy, a panel may find bad faith when a respondent “[uses] the domain name to intentionally attempt to attract, for commercial gain, Internet users to [respondent’s] web site or other on-line location, by creating a likelihood of confusion with complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [respondent’s] web site or location or a product or service on [the respondent’s] web site or location”.
The Respondent registered and is using the disputed domain name in bad faith. Establishing a website to and using the Complainant’s details to misrepresent itself as the Complainant using a disputed domain name that incorporates a significant portion of the Complainant’s mark is a clear example of bad faith registration and use under the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <homestore24.net> be transferred to the Complainant.
Evan D. Brown
Sole Panelist
Date: November 4, 2020