Target Brands, Inc. v. Carole Kline
Claim Number: FA0706001011824
Complainant is Target Brands, Inc. (“Complainant”), represented by Lisa
C. Walter, of Faegre & Benson,
LLP, 1700 Lincoln St., Suite 3200, Denver, CO 80203-4532. Respondent is Carole Kline (“Respondent”), cfdshopping.com/6581,
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <targetredbullseye.com>, registered with Wild West Domains, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 19, 2007; the National Arbitration Forum received a hard copy of the Complaint on June 21, 2007.
On June 21, 2007, Wild West Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <targetredbullseye.com> domain name is registered with Wild West Domains, Inc. and that Respondent is the current registrant of the name. Wild West Domains, Inc. has verified that Respondent is bound by the Wild West Domains, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On June
27, 2007, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
July 17, 2007
by which Respondent could file a response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent's registration as technical, administrative and billing contacts,
and to postmaster@targetredbullseye.com
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 19, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <targetredbullseye.com> domain name is confusingly similar to Complainant’s TARGET and BULLSEYE marks.
2. Respondent does not have any rights or legitimate interests in the <targetredbullseye.com> domain name.
3. Respondent registered and used the <targetredbullseye.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Target Brands, Inc., is a wholly owned
subsidiary of Target Corp., a well-known and recognized national corporation
that operates retail discount department stores across
Respondent registered the <targetredbullseye.com> domain name on November 3, 2006. Respondent’s disputed domain name resolves to a website displaying a message indicating that the site is “coming soon,” and containing links to websites offering various Internet and web-search services unrelated to Complainant’s business.
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."
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(e), 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 (Nat. Arb. 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.”).
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.
Complainant’s registration of the TARGET and BULLSEYE marks with the USPTO sufficiently establishes its rights in the mark for the purposes of Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”).
Respondent’s <targetredbullseye.com> domain name is confusingly similar to Complainant’s TARGET and BULLSEYE marks. The disputed domain name incorporates both marks completely, connecting the two marks with the generic term “red,” which also is a color used extensively by Complainant in connection with its business. Previous panels have found, and this Panel so finds, that the combination of two distinctive marks and the addition of a generic term to a mark can cause a disputed domain name to be confusingly similar to the mark(s). Moreover, the addition of the generic top-level domain “.com” is irrelevant to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names. Thus, the Panel finds that the <targetredbullseye.com> domain name is confusingly similar to Complainant’s TARGET and BULLSEYE marks pursuant to Policy ¶ 4(a)(i). See Nintendo of Am. Inc. v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (finding confusing similarity where respondent combined the complainant’s POKEMON and PIKACHU marks to form the <pokemonpikachu.com> domain name); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Under Policy ¶ 4(a)(ii), Complainant has the initial burden of proving that Respondent lacks rights or legitimate interests in the <targetredbullseye.com> domain name. However, once Complainant has established a prima facie case, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain name. In the instant case, the Panel finds that Complainant has made a prima facie case under the Policy. See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Respondent’s failure to answer the Complaint raises the
presumption that Respondent lacks rights or legitimate interests in the <targetredbullseye.com> domain
name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1,
2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to
Respondent. Respondent’s failure to respond means that Respondent has not
presented any circumstances that would promote its rights or legitimate
interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Am.
Express Co. v. Fang Suhendro, FA 129120
(Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond,
it is presumed that Respondent lacks all rights and legitimate interests in the
disputed domain name.”). However, the
Panel will now examine the record to determine if Respondent has rights or
legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by the <targetredbullseye.com> domain name. The Panel finds nothing in the record, including Respondent’s WHOIS information, to suggest that Respondent is known by the disputed domain name. Also, Complainant has not licensed or authorized Respondent to use the TARGET or BULLSEYE marks for any purpose. Thus, Respondent lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of Complainant’s mark there must be strong evidence that Respondent is commonly known by the disputed domain name in order to find that Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). However, there is no evidence on record, and Respondent has not come forward with any proof to establish that it is commonly known as CELEBREXRX or <celebrexrx.com>.”); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s <targetredbullseye.com> domain name resolves to a website featuring links to various unrelated third-party websites. The Panel presumes that Respondent accrues click-through fees when Internet users click on these links. This is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names); see also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
The Panel thus finds that Policy ¶ 4(a)(ii) has been
satisfied.
As indicated above, the website that resolves from the <targetredbullseye.com> domain name contains links to third-party websites unrelated to Complainant, and the Panel presumes that Respondent benefits commercially from these links. Respondent is therefore capitalizing on the likelihood that Internet users, seeking Complainant’s products and services, will confuse the source of the disputed domain name as being affiliated with Complainant. The Panel finds that this is evidence that Respondent registered and is using the <targetredbullseye.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration and use of a domain name that incorporates another's mark with the intent to deceive Internet users in regard to the source or affiliation of the domain name is evidence of bad faith.”); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel thus finds that Policy ¶ 4(a)(iii) has been
satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <targetredbullseye.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: July 30, 2007
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