The TJX Companies, Inc. v. Domain Admin / None
Claim Number: FA2112001978760
Complainant is The TJX Companies, Inc. (“Complainant”), represented by Steven M. Levy, District of Columbia, USA. Respondent is Domain Admin / None (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tjxandyou.com>, (‘the Domain Name’) registered with Tucows Domains Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 30, 2021; the Forum received payment on December 30, 2021.
On December 30, 2021, Tucows Domains Inc. confirmed by e-mail to the Forum that the <tjxandyou.com> Domain Name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 January 4, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 24, 2022 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@tjxandyou.com. Also on January 4, 2022, 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 January 26, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the TJX trade mark which has been used since 1987. It owns numerous trade mark registrations for TJX in the USA. Complainant uses the domain name <youandTJX.com> to resolve to a “Login” page intended to be used for Complainant’s employees including new employees. This is a portal where the Complainant’s team members may use their login credentials to access information and documents related to employee benefits such as health insurance, retirement plan contributions, vacation and leave policies, and other employee programs.
The Domain Name registered in 2021 incorporates the TJX mark in its entirety. The addition of the descriptive terms ‘you’ and ‘and’ and the gTLD “.com” does not prevent the similarity of the Domain Name to the Complainant’s mark.
Respondent has no rights or legitimate interests in the Domain Name. Respondent is not commonly known by the Domain Name. Respondent has no authorization from the Complainant to use the Complainant’s mark in any way.
Respondent is using the Domain Name to point to unrelated content on Wikipedia. Copying a well-known trademark for the purpose of diverting traffic to third-party online content through impersonation or passing off is confusing and has been held not to be a bona fide use of a domain name. Also, it can be presumed that Respondent’s use of the Domain Name is commercial in nature as Respondent may be earning affiliate revenue for forwarding traffic to the third-party website and so is not legitimate non-commercial fair use.
In case of any arguments that the unrelated Wikipedia content constitutes criticism
and free speech, the issue of whether and in what circumstances a domain name
incorporating the trade mark of another in respect of a site used to criticise
the trade mark owner is addressed in sections 2.5.1 and 2.6 of the WIPO
Overview 3.0. Here a distinction is made between the situation where the domain
name takes the form <[trade mark].[gTLD]> and where the domain name takes
the form, for example <[trade mark]-[derogatory term].[gTLD]> and
inherently signals to the internet user the nature of the material that is
likely to appear on the associated website. In the former case (subject to a
caveat which as this decision goes on to address may now be historic),
panelists have generally concluded that there is no right or legitimate
interest, but in the latter one may exist.
As regards bad faith, by impersonating Complainant and its <youandTJX.com> website address, Respondent is seeking to lure users to a third-party website and its actions are a straightforward example of disruption as contemplated by Policy ¶ 4(b)(iii). While it is unclear if the Respondent conducts any business using the Domain Name, it is still considered a “competitor” under Policy ¶ 4(b)(iii)as this word has been broadly interpreted by Panels to include “one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”.
Further, bad faith registration and use is quite obvious here as the Respondent intentionally sought to cause confusion between the <TJXandyou.com> Domain Name and both the TJX mark and <youandTJX.com> employee benefits site per Policy ¶ 4(b)(iv). Further, the forwarding of internet traffic from a confusingly similar domain name to a third-party website is most often done with the goal of seeking commercial gain, in the form of affiliate revenue or other traffic bounty.
The transposition of words or letters from a complainant’s mark or web address is a form of typo-squatting and supports a finding of bad faith registration and use based upon confusion and actual knowledge of the Complainant. Hourglass Angel, LLC v. Pham Dinh Nhut, FA 1556334 (Forum June 12, 2014) (“Respondent is engaging in typosquatting by transposing the dominant features of Complainant’s mark. * * * Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”) Here, Respondent merely transposes the words “and you” in comparison with Complainant’s legitimate <youandTJX.com> address. This clearly reveals Respondent’s intention that the Domain Name be visually mistaken for Complainant’s trade name and legitimate website address.
The Respondent has hidden its identity behind a privacy service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the TJX trade mark which has been used since 1987. It owns numerous trade mark registrations for TJX in the USA. Complainant uses the domain name <youandTJX.com> to resolve to a “Login” page intended to be used for Complainant’s employees including new employees. This is a portal where TJX team members may use their login credentials to access information and documents related to employee benefits such as health insurance, retirement plan contributions, vacation and leave policies, and other employee programs.
The Domain Name registered in 2021 has been used to point to content unrelated to the Complainant on Wikipedia.
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 Domain Name in this Complaint combines the Complainant’s TJX mark (registered in the USA for retail services with first use recorded as 1987), the generic terms ‘you’ and ‘and’ the gTLD “.com”.
Panels have held that the addition of generic words does not prevent confusing similarity between a domain name and a complainant’s mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i).). Accordingly the Panel holds that the addition of the generic terms ‘you’ and ‘and’ do not prevent confusing similarity between the Complainant’s mark and the Domain Name.
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Respondent has not answered this Complaint and is not authorized by the Complainant. The Respondent does not appear to be commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Using a confusingly similar domain name to display unrelated material evidences a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii). See Haru Holding Corporation v. AI Matusita, FA 1679867 (Forum Aug. 11, 2016) (holding that “unrelated use [of a disputed domain name] by a respondent consists of neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use”); see also Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Also the Domain Name appears to be a form of typosquatting registration transposing the terms in a url used by the Complainant for an employee portal. Typosquatting has also been held by panels to be an indication of a lack of rights or legitimate interests. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v. Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be diverted is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(iii) and there is no need to consider additional allegations of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tjxandyou.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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