Target Brands, Inc. v. Shuai Nian Qing
Claim Number: FA0910001291741
Complainant is Target Brands, Inc. (“Complainant”), represented by Jennifer Daniel Collins, of Faegre & Benson LLP, Colorado, USA. Respondent is Shuai Nian Qing (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwtarget.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 28, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 28, 2009.
On October 28, 2009, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <wwtarget.com> domain name is registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the name. Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com has verified that Respondent is bound by the Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com 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 November 2, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 23, 2009 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@wwtarget.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 30, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 <wwtarget.com> domain name is confusingly similar to Complainant’s TARGET mark.
2. Respondent does not have any rights or legitimate interests in the <wwtarget.com> domain name.
3. Respondent registered and used the <wwtarget.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Target Brands, Inc., operates a chain of retail stores offering a wide variety of consumer products including, toiletries, clothing, household goods and food. Complainant holds multiple registrations of its TARGET mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 845,193 issued February 27, 1968).
Respondent registered the disputed domain name on January 10, 2008. The disputed domain name resolves to a website displaying links to third-party products and services that compete with Complainant’s retail 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.
The Panel finds that Complainant’s registrations of the TARGET mark with the USPTO is sufficient to establish rights under Policy ¶ 4(a)(i). Registration of the mark in the country of Respondent’s residence is unnecessary to establish rights under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether the complainant’s mark is registered in a country other than that of the respondent’s place of business).
The <wwtarget.com> domain name contains Complainant’s TARGET mark in its entirety, with “ww,” a misspelled version of the “www.” prefix, and the addition of the generic top-level domain (gTLD) “.com.” The Panel finds these alterations are insufficient to differentiate the disputed domain name from Complainant’s mark and thus finds confusing similarity under Policy ¶ 4(a)(i). See 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.”); see also Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb. Forum Dec. 6, 2002) (holding confusing similarity has been established because the prefix “www” does not sufficiently differentiate the <wwwneimanmarcus.com> domain name from the complainant's NEIMAN-MARCUS mark); see also Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that the respondent’s domain name <wwwbankofamerica.com> is confusingly similar to the complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name).).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant must
first establish a prima facie case that Respondent has no rights or
legitimate interests in the <wwtarget.com>
domain name. Once Complainant establishes a prima facie
case, the burden shifts to Respondent to show that it has rights or
legitimate interests in the disputed domain name. The Panel finds that Complainant’s
allegations are sufficient to establish a prima
facie case. Since no response was submitted in this case, the Panel may presume
that Respondent has no rights or legitimate interests in the disputed domain
name. However, the Panel will still
examine the record in consideration of the factors listed in Policy ¶
4(c). See Domtar, Inc. v. Theriault.,
FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a
complainant has made out a prima facie case
in support of its allegations, the burden shifts to respondent to show that it
does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the
Policy.”); see also 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).”).
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <wwtarget.com>
domain name. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the TARGET mark, and the WHOIS information identifies the registrant as
“Shuai Nian Qing.” Therefore, the Panel finds that Respondent is
not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent
Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating
“nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly
known by’ the disputed domain name” as one factor in determining that Policy ¶
4(c)(ii) does not apply); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent
has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration
information, Respondent is not commonly known by the [<awvacations.com>]
domain name.”).
Complainant asserts that Respondent’s <wwtarget.com> domain name resolves
to a website displaying links to third-party competitors of Complainant’s
retail products and services. The Panel finds that this
use is not a bona fide offering of
goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair
use under Policy ¶ 4(c)(iii). See
Wal-Mart Stores, Inc. v. Power of Choice Holding Co., FA 621292 (Nat. Arb. Forum Feb. 16, 2006)
(finding that the respondent’s use of domain names confusingly similar to the
complainant’s WAL-MART mark to divert Internet users seeking the complainant’s
goods and services to websites competing with the complainant did not
constitute a bona fide offering of goods or services under Policy ¶
4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also DLJ Long Term Inv. Corp. v.
BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002)
(“Respondent is not using the disputed domain name in connection with a bona
fide offering of goods and services because Respondent is using the domain name
to divert Internet users to <visual.com>, where services that compete
with Complainant are advertised.”).
Additionally, Respondent has purposely included
typographical errors in the domain name to divert Internet users to its
website, a practice known as “typosquatting.”
The <wwtarget.com>
domain name takes advantage of Internet users who omit one “w” and the period
as part of the “www.” prefix at the beginning of a domain name. This is further evidence that Respondent does
not have rights or legitimate interests in the disputed domain name pursuant to
Policy ¶ 4(a)(ii). See Black & Decker
Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3,
2003) (finding no rights or legitimate interests where the respondent used the
typosquatted <wwwdewalt.com> domain name to divert Internet users to a
search engine webpage, and failed to respond to the complaint); see also Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******,
FA 156839 (Nat. Arb. Forum June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain name, a typosquatted version of
the complainant’s DINERS CLUB mark, was evidence in and of itself that the
respondent lacks rights or legitimate interests in the disputed domain name vis
á vis the complainant).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <wwtarget.com> domain name to resolve to a website with links to Complainant’s
competitors. The Panel finds this
diversion of Internet users to competing businesses is a disruption of
Complainant’s business by Respondent under Policy ¶ 4(b)(iii). See
Surface Prot. Indus., Inc. v. Webposters,
D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive
relationship between the complainant and the respondent, the respondent likely
registered the contested domain name with the intent to disrupt the
complainant's business and create user confusion); see also David Hall Rare
Coins v. Tex. Int’l Prop. Assocs., FA 915206 (Nat. Arb. Forum Apr. 9, 2007) (finding
that the respondent registered and used the disputed domain name in bad faith
pursuant to Policy ¶ 4(b)(iii) because respondent used the disputed domain name
to advertise goods and services of complainant’s competitors, thereby
disrupting the complainant’s business).
Respondent is gaining commercially from the receipt of click-through fees by displaying links to third-party websites on the website resolving from the confusingly similar disputed domain name. This is an attempt by Respondent to profit from Internet users’ confusion as to Complainant’s affiliation with the disputed domain name and the resolving website, further evidence of bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(iv). See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)); see also AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was commercially gaining from the likelihood of confusion between the complainant’s AIM mark and the competing instant messaging products and services advertised on the respondent’s website which resolved from the disputed domain name).
The Panel finds that Respondent’s engagement in
typosquatting is further evidence that Respondent registered and is using the <wwtarget.com> domain name in bad
faith pursuant to Policy ¶ 4(a)(iii). See Nat’l
Ass’n of Prof’l Baseball League, Inc. v. Zuccarini, D2002-1011 (WIPO
Jan. 21, 2003) (“Typosquatting … is the intentional misspelling of words with
[the] intent to intercept and siphon off traffic from its intended destination,
by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of
itself evidence of bad faith.”); see also
Sports Auth. Mich., Inc. v. Skander,
FA 135598 (Nat. Arb. Forum Jan. 7, 2002) (stating that “[b]y registering the
‘typosquatted’ domain name in [Complainant’s] affiliate program, Respondent
profits on the goodwill of [Complainant’s] protected marks and primary Internet
domain names,” which is evidence of bad faith registration and use).
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 <wwtarget.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 12, 2009
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