Target Brands, Inc. v. Domain Proxies, LLC
Claim Number: FA1006001331238
Complainant is Target
Brands, Inc. (“Complainant”), represented by Jodi A. DeSchane, of Faegre & Benson LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <targt.com>, registered with DOTREGISTRAR.
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.
Honorable Paul A. Dorf (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 22, 2010.
On June 22, 2010, DOTREGISTRAR confirmed by e-mail to the National Arbitration Forum that the <targt.com> domain name is registered with DOTREGISTRAR and that Respondent is the current registrant of the name. DOTREGISTRAR has verified that Respondent is bound by the DOTREGISTRAR 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 24, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 14, 2010 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@targt.com. Also on June 24, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 20, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <targt.com> domain name is confusingly similar to Complainant’s TARGET mark.
2. Respondent does not have any rights or legitimate interests in the <targt.com> domain name.
3. Respondent registered and used the <targt.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 discount department stores numbering more than 1,400 stores in 47 states. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its TARGET mark (e.g., Reg. No. 845,193 issued February 27, 1968). Complainant operates an online shopping site resolving from its <target.com> domain name.
Respondent, Domain Proxies, LLC, registered the disputed domain name on June 21, 2005. The disputed domain name resolves to a website that displays search terms that direct Internet users to third-party websites that offer goods and services in direct competition with Complainant.
Respondent has been the respondent in at least seven other UDRP proceedings ordering the transfer of the disputed domain names to the respective complainants in those cases. See Weight Watchers Int’l Inc. v. Domain Proxies, LLC, D2007-0798 (WIPO Aug. 17, 2007); see also Google Inc. v. Domain Proxies, LLC, FA 1324082 (Nat. Arb. Forum Jun. 10, 2010).
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 asserts rights in its TARGET mark based on its
multiple registrations with the USPTO (e.g.,
Reg. No. 845,193 issued February 27, 1968).
The Panel finds that Complainant’s registrations of its TARGET mark with
the USPTO is sufficient evidence of its rights in the mark pursuant to Policy ¶
4(a)(i), even if the mark has not been registered in
the location where Respondent resides. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29,
2007) (“As the [complainant’s] mark is registered with the USPTO, [the]
complainant has met the requirements of Policy ¶ 4(a)(i).”);
see also Renaissance Hotel Holdings, Inc. v. Renaissance
Complainant argues that Respondent’s <targt.com> domain name is confusingly similar to
Complainant’s TARGET mark. Respondent’s
disputed domain name merely omits the letter “e” from Complainant’s mark and
appends the generic top-level domain (“gTLD”) “.com.” The Panel finds that the omission of a single
letter and the addition of a gTLD are not sufficient to distinguish between a
disputed domain name and a mark. See Pfizer Inc. v. BargainName.com, D2005-0299 (WIPO Apr. 28, 2005)
(holding that the <pfzer.com> domain name was confusingly similar to the
complainant’s PFIZER mark, as the respondent simply omitted the letter “i”); see also Jerry Damson, Inc. v.
The Panel finds that
Policy ¶ 4(a)(i) is satisfied.
Pursuant to the requirements of Policy ¶ 4(a)(ii), Complainant must first establish a prima facie case that Respondent lacks rights and legitimate interests before the burden shifts to Respondent to provide concrete evidence that it does have rights or legitimate interests in the disputed domain name. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Panel finds that, based on the arguments made in the Complaint, Complainant has established a prima facie case. The Panel further finds that Respondent’s failure to submit a Response to these proceedings is tantamount to Respondent’s acceptance of Complainant’s allegations as true. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”). Nevertheless, the Panel will examine the record in light of the factors outlined in Policy ¶ 4(c) to determine whether Respondent possesses rights or legitimate interests in the disputed domain name.
Complainant asserts that Respondent is not, and has never been, a licensee of Complainant. The WHOIS information does not identify Respondent as being connected with the disputed domain name in any way. Without evidence in the record to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant alleges that Respondent’s disputed domain name resolves to a website that displays sponsored links to third-party websites that offer goods and services in direct competition with Complainant. Complainant further alleges that Respondent is paid click-through fees when Internet users visit or purchase products from the sponsored links. The Panel finds that Respondent’s use of the disputed domain name for such a purpose is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding that the respondent was not using a disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use by redirecting Internet users to a commercial search engine website with links to multiple websites that may be of interest to the complainant’s customers and presumably earning “click-through fees” in the process); see also Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites).
Complainant asserts that Respondent is engaged in the practice of typosquatting as evidenced by its registration of the disputed domain name containing a common misspelling of Complainant’s TARGET mark. The Panel finds that Respondent is attempting to take advantage of Internet users who mistakenly forget to type the letter “e” when searching for Complainant’s goods and services on the Internet. The Panel finds that typosquatting is further evidence that Respondent lacks rights and legitimate interests in the disputed domain name. See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
The Panel finds that Policy ¶ 4(a)(ii) is satisfied.
Complainant asserts that Respondent is a serial
cybersquatter that has been a respondent in at least seven adverse UDRP
decisions based on registrations of infringing domain names. See
Weight Watchers Int’l Inc. v. Domain
Proxies, LLC, D2007-0798 (WIPO Aug. 17, 2007); see also Google Inc. v.
Domain Proxies, LLC, FA 1324082 (Nat. Arb. Forum Jun. 10, 2010). The Panel finds that Respondent’s pattern of
registering infringing domain names in violation of UDRP Policy is evidence of
Respondent’s bad faith registration and use in the instant proceeding pursuant
to Policy ¶ 4(b)(ii).
See Westcoast Contempo Fashions Ltd. v.
Respondent’s disputed domain name resolves to a website that displays sponsored third-party links that compete with the goods and services provided by Complainant in its retail discount department stores. Thus, Internet users who seek out Complainant’s goods and services may instead end up purchasing these goods and services from a direct competitor of Complainant. The Panel finds that this is a disruption of Complainant’s business and is evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (“This Panel concludes that by redirecting Internet users seeking information on Complainant’s educational institution to competing websites, Respondent has engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant asserts that Respondent has registered the confusingly similar disputed domain name in an attempt to intentionally attract Internet users for Respondent’s commercial gain. Complainant contends that Respondent benefits financially through the receipt of click-through fees generated by Respondent’s display of competing third-party links. The Panel agrees and finds this to be evidence of Respondent’s bad faith pursuant to Policy ¶ 4(b)(iv). See Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006) (finding that the respondent engaged in bad faith registration and use by using a domain name that was confusingly similar to the complainant’s mark to offer links to third-party websites that offered services similar to those offered by the complainant); 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).
As established previously, Respondent’s registration of the <targt.com> domain name, a common misspelling of Complainant’s TARGET mark, is evidence of Respondent’s typosquatting. The Panel finds that typosquatting is itself evidence of Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also The Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii).”).
The Panel finds that Policy ¶ 4(a)(iii) is 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 <targt.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: July 27, 2010
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