Target Brands, Inc v. Paul Olkenfold
Claim Number: FA0710001089377
Complainant is Target Brands, Inc (“Complainant”), represented by Rita
Sanzgiri, of Faegre & Benson, LLP, 1900
Fifteenth Street, Boulder, CO 80302-5414. Respondent is Paul Olkenfold (“Respondent”), 1234 blah street,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <targetgiftcards.net>, registered with Gandi Sas.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On October 9, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 29, 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
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 <targetgiftcards.net> domain name is confusingly similar to Complainant’s TARGET mark.
2. Respondent does not have any rights or legitimate interests in the <targetgiftcards.net> domain name.
3. Respondent registered and used the <targetgiftcards.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Target Brands, Inc., has operated a chain of
TARGET retail discount department stores since 1962. Complainant has more than 1,400 stores in 47
states, and operates an informational and online shopping website. Complainant registered the TARGET mark with
the United States Patent and Trademark Office (“USPTO”) on
Respondent registered the <targetgiftcards.net>
domain name on
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.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant claims that Respondent has no rights or
legitimate interests in the <targetgiftcards.net>
domain name. Complainant has the initial burden of
showing that Respondent lacks rights and legitimate interests in the disputed
domain name. Once Complainant makes a prima facie case supporting its
assertion that Respondent does not have rights or legitimate interests, the
burden shifts to Respondent to show that it does have rights or legitimate
interests in the disputed domain name.
The Panel finds that Complainant has demonstrated that Respondent lacks
rights and legitimate interests, and thus has made a prima facie case pursuant to Policy ¶ 4(a)(ii). See
Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l,
Respondent failed to answer the Complaint; therefore, the Panel presumes that Respondent lacks all rights and legitimate interests in the disputed domain name. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000) (“By not submitting a response, Respondent has failed to invoke any circumstance which could demonstrate, pursuant to ¶ 4(c) of the Policy, any rights or legitimate interests in the domain name”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). Despite Respondent’s failure to answer, the Panel will examine the evidence in the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant contends that Respondent is not, and has never
been, a licensee of Complainant or its predecessors-in-interest, and thus has
never been commonly known by the <targetgiftcards.net>
domain name. The WHOIS information does
not indicate that Respondent is or has been currently known by the disputed
domain name. Therefore, the Panel
concludes that Respondent is not commonly known by the disputed domain name
pursuant to Policy ¶ 4(c)(ii). See Hartford Fire Ins. Co. v. Webdeal.com,
Inc., FA 95162 (Nat. Arb. Forum Aug. 29, 2000) (finding that the respondent
has no rights or legitimate interests in domain names because it is not
commonly known by the complainant’s marks and the respondent has not used the
domain names in connection with a bona fide offering of goods and
services or for a legitimate noncommercial or fair use); see also Broadcom Corp. v. Intellifone Corp., FA 96356 (Nat. Arb.
Forum Feb. 5, 2001) (finding no rights or legitimate interests because the
respondent is not commonly known by the disputed domain name or using the
domain name in connection with a legitimate or fair use); see also Tercent Inc. v. Lee
Yi, FA 139720 (Nat. Arb. Forum
Moreover, Respondent uses the disputed domain name to redirect Internet users to its adult-oriented website. Previous panels have found, and this Panel also finds, that such a use does not constitute a bona fide offering of goods and services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Sony Kabushiki Kaisha v. Domain email@example.com +1.415.0, FA 128701 (Nat. Arb. Forum Dec. 16, 2002) (finding that the respondent’s use of its domain name in order to divert Internet users to a website that offers search engine services and links to adult orientated websites was not considered to be in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or 4(c)(iii)); see also Geoffrey, Inc. v. Toyrus.com, FA 150406 (Nat. Arb. Forum Apr. 25, 2003) (finding that the respondent had no rights or legitimate interests in a domain name that it used to redirect Internet users to an Internet directory website that featured numerous pop-up advertisements for commercial goods and sexually explicit websites).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <targetgiftcards.net>
domain name to redirect users to its adult-oriented website. Complainant asserts that Respondent is attempting
to attract Internet users to its website for commercial gain, benefiting from
the likely confusion with the TARGET mark.
The Panel therefore finds that Respondent’s use of the disputed domain
name to redirect users to an adult-oriented website constitutes bad faith
registration and use pursuant to Policy ¶ 4(b)(iv). See Ty,
Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent
contrary evidence, linking the domain names in question to graphic,
adult-oriented websites is evidence of bad faith); see also Youtv, Inc. v. Alemdar, FA 94243 (Nat. Arb. Forum
Finally, Respondent’s use of the confusingly similar <targetgiftcards.net> domain name for the purpose of operating an adult-oriented website is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Nat. Arb. Forum Mar. 18, 2003) (finding that the respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith); see also Microsoft Corp. v. Horner, D2002-0029 (WIPO Feb. 27, 2002) (holding that the respondent’s use of the complainant’s mark to post adult-oreinted photographs and to publicize hyperlinks to additional adult-oriented websites evidenced bad faith use and registration of the domain name).
The Panel 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 <targetgiftcards.net> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: November 12, 2007
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