The TJX Companies, Inc. v. nonku gibbs
Claim Number: FA1906001846438
Complainant is The TJX Companies, Inc. (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is nonku gibbs (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tjxeuropes.com>, registered with GoDaddy.com, 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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 4, 2019; the Forum received payment on June 7, 2019.
On June 5, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <tjxeuropes.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 June 11, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 1, 2019 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@tjxeuropes.com. Also on June 11, 2019, 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 5, 2019, 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 owns and operates various retail stores in North America and Europe. Complainant has rights in its TJX EUROPE mark through registration with the EU’s Office for Harmonization in the Internal Market (“OHIM”) (e.g. Reg. No. 008321317, registered Dec. 11, 2009). See Compl. Ex. E-1. Respondent’s <tjxeuropes.com> domain name is confusingly similar to Complainant’s TJX EUROPE mark as it incorporates the mark in its entirety and merely adds the letter “s” and the “.com” generic top-level domain (“gTLD”).
Respondents has no rights or legitimate interests in the <tjxeuropes.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is using the disputed domain name to offer pay-per-click hyperlinks which diverts Complainant’s customers and potential customers to other websites which are not associated with Complainant, and in some cases, to Complainant’s competitors’ websites in the retail shop industry.
Respondent’s <tjxeuropes.com> domain name was registered and is being used in bad faith, as Respondent uses the disputed domain name to attract internet users for commercial gain from the offered hyperlinks. Furthermore, Respondent orchestrated a phishing scheme aimed at Complainant’s Human Resource department to have payroll deposits made to a new and fraudulent bank account. Finally, Respondent had actual knowledge of Complainant’s rights in the TJX EUROPE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on February 10, 2019.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the dispute domain name; and that Respondent has engaged in bad faith use and registration of the dispute 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that the disputed domain name, <tjxeuropes.com>, is confusingly similar to Complainant’s valid and subsisting trademark, TJX EUROPE. Complainant has adequately plead its rights and interests in this trademark. Respondent arrives at the dispute domain name by merely appropriating Complainant’s mark in total and adding an “s” and the g TLD “.com” to it. This is insufficient to distinguish the dispute domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the dispute domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the dispute domain name. Further, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent appears to be using the disputed domain name to offer pay-per-click hyperlinks which diverts Complainant’s customers and potential customers to other websites which are not associated with Complainant, and in some cases, to Complainant’s competitors’ websites in the retail shop industry.
As such, the Panel finds that Respondent has no 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. The disputed domain name was registered and is being used in bad faith, as Respondent appears to be using the disputed domain name to attract internet users for commercial gain from the offered hyperlinks. Registration and use of a disputed domain name to offer hyperlinks that compete with complainant’s business can be evidence of bad faith under Policy ¶ 4(b)(iv). See Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”). Here, Complainant offers screen shots that show the resolving webpage for the disputed domain name which has links to sites of Complainant’s competitors and/or sites unrelated to Complainant’s industry. See Compl. Ex. F-2. Therefore, the Panel finds that the disputed domain name was registered and is being used in bad faith, as the Respondent is using the disputed domain name to attract internet users for commercial gain under Policy ¶ 4(b)(iv).
Further, Respondent used the email address associated with the disputed domain name to orchestrate a phishing ploy targeted at Complainant. Use of email to trick complainant or affiliates of complainant into divulging personal information or money is phishing and is evidence of bad faith under Policy ¶ 4(a)(iii). See SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA14009001581255 (Forum Oct. 29, 2014) (“The Panel finds that Respondent’s use of the domain name’s e-mail suffix for fraudulent purposes illustrates Policy ¶ 4(a)(iii) bad faith.”). Here, Complainant provides copies of the emails sent by Respondent to entice Complainant’s HR department to routing its payroll to a new and fraudulent bank account. See Compl. Ex. G. Therefore, the Panel finds that the disputed domain name was registered and is being used in bad faith as Respondent is using email to phish Complainant’s employees, under Policy ¶ 4(a)(iii).
Finally, the Panel finds that Respondent had actual knowledge of Complainant’s prior rights and interests in and to its trademark. Here, Complainant points to the fame of its TJX EUROPE mark and the methodology utilized by Respondent to phish Complainant’s employees. Therefore, the Panel finds that Respondent had actual knowledge of Complainant’s right in the TJX EUROPE mark under Policy ¶ 4(a)(iii).
As such, the Panel finds that Respondent engaged in bad faith use and registration of the dispute 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 <tjxeuropes.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: July 5, 2019
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