Target Brands, Inc. v. Guowei Hai Gui
Claim Number: FA1102001371811
Complainant is Target Brands, Inc. (“Complainant”), Minnesota, USA. Respondent is Guowei Hai Gui (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tatget.com>, registered with Moniker Online Services LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 8, 2011; the National Arbitration Forum received payment on February 15, 2011.
On February 11, 2011, Moniker Online Services LLC confirmed by e-mail to the National Arbitration Forum that the <tatget.com> domain name is registered with Moniker Online Services LLC and that Respondent is the current registrant of the name. Moniker Online Services LLC has verified that Respondent is bound by the Moniker Online Services LLC 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 February 16, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 8, 2011 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@tatget.com. Also on February 16, 2011, 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 March 10, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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" 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 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:
Complainant uses the TARGET trademark in connection with its operation of retail department stores, as well as the marketing of related products and services.
Complainant owns trademark registrations with the United States Patent and Trademark Office ("USPTO") for its TARGET trademark (including Reg. No. 818,410, issued November 8, 1966).
Respondent registered the <tatget.com> domain name on April 10, 2003.
Respondent’s domain name resolves to a website that displays links to the websites of companies in competition with the business of Complainant.
Respondent has been a respondent in previous UDRP decisions in which the transfer of contested domain names to various complainants was ordered.
Respondent’s <tatget.com> domain name is confusingly similar to Complainant’s TARGET mark.
Respondent does not have any rights to or legitimate interests in the domain name <tatget.com>.
Respondent registered and uses the <tatget.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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 a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has supplied sufficient evidence of its registrations for the TARGET trademark with a national trademark authority, the USPTO, to establish its rights in the mark under Policy ¶ 4(a)(i). 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 Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding that a complainant had established rights in the PENTIUM, CENTRINO and INTEL INSIDE marks by registering the marks with the USPTO); further see KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter, for purposes of ¶ 4(a)(i) of the Policy, whether a complainant’s mark is registered in a country other than that of a respondent’s place of business, it being sufficient that a complainant can establish rights in its mark in some jurisdiction).
The <tatget.com> domain name is confusingly similar to Complainant’s TARGET mark under Policy ¶ 4(a)(i) because the domain name merely misspells Complainant’s mark by replacing the single letter “r” of the mark with the letter “t,” while adding the generic top-level domain (“gTLD”) “.com.” See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to a complainant's BELKIN mark because the name merely replaced the letter “i” in the mark with the letter “e”); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
The Panel therefore finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have rights to or legitimate interests in the <tatget.com> domain name. Complainant is required to produce a prima facie case in support of its allegations on this point, whereupon the burden shifts to Respondent to prove that it nonetheless possesses rights to or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 2, 2002):
Because Complainant’s submissions constitute a prima facie case under the Policy, the burden effectively shifts to Respondent.
Complainant has adequately established a prima facie case under this head of the Policy. Owing to Respondent’s failure to respond to the Complaint filed in these proceedings, we may presume that Respondent does not possess rights to or legitimate interests in the disputed domain name. See Am. Express Co. v. Fan 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.
We will, however, examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent possesses rights or legitimate interests in the disputed domain name which are cognizable under the Policy.
We first observe that Complainant contends, and Respondent does not deny, that Respondent is not commonly known by the <tatget.com> domain name or the TARGET mark, and that Respondent does not operate a business or other organization under the mark or the disputed domain and does not own any trademark or service mark rights in these names. Moreover, the WHOIS information for the disputed domain name identifies the registrant only as “Guowei Hai Gui,” which does not resemble the domain name at issue. Finally, there is no evidence in the record to suggest that Complainant has given Respondent permission to use its TARGET mark in the contested domain name or otherwise. Therefore, we must conclude that Respondent is not commonly known by the disputed domain name so as to have demonstrated that it has rights to or legitimate interests in the domain under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that a respondent was not commonly known by disputed domain names where the relevant WHOIS information, as well as all other information in the record, gave no indication that that respondent was commonly known by the domains, and where a complainant had not authorized that respondent to register a domain name containing its mark); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that a respondent was not commonly known by the <lilpunk.com> domain name where there was no evidence in the record showing that that respondent was commonly known by the domain name, and where a complainant asserted that it did not authorize or license that respondent’s use of its mark in a domain name).
We also note that Complainant asserts, without objection from Respondent, that Respondent’s domain name resolves to a website that displays links to the websites of competitors of Complainant. This is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the contested domain name under Policy ¶ 4(c)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003): “Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.” 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 …[a website]…, where services that compete with Complainant are advertised.
In addition, Respondent’s <tatget.com> domain name contains a common misspelling of Complainant’s TARGET mark. The registration of a domain name that contains a common misspelling of the trademark of another constitutes typo-squatting, which is evidence that Respondent lacks rights to and legitimate interests in the domain. See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, a respondent had “engaged in typosquatting, which provides additional evidence that respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003), finding that a respondent lacked rights to and legitimate interests in disputed domain names because it:
engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's … website but mistakenly misspell Complainant's mark ….
Respondent’s registration and use of the typo-squatted domain name is further evidence that it lacks rights to and legitimate interests in the domain name pursuant to Policy ¶ 4(a)(ii).
For these reasons, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has been a party to previous UDRP decisions in which the transfer of domain names to various complainants was ordered. See Barclays Bank PLC v. Gui, D2010-1991 (WIPO Jan. 11, 2011); see also Five Star JV LLC v. Gui, FA 1356569 (Nat. Arb. Forum Dec. 20, 2010); see also US Cmty. Credit Union v. Gui, D2010-1136 (WIPO Sept. 15, 2010). This is evidence that Respondent is a serial cyber-squatter, which in turn demonstrates that Respondent registered and uses the <tatget.com> domain name in bad faith pursuant to Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where a respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of others); see also Sony Kabushiki Kaisha v. Anderson, FA 198809 (Nat. Arb. Forum Nov. 20, 2003) (finding a pattern of registering domain names in bad faith under Policy ¶ 4(b)(ii) where a respondent previously registered domain names incorporating third party trademarks).
Respondent’s use of the disputed domain name to divert Internet users to the websites of businesses competing with Complainant is evidence of Respondent’s bad faith registration and use of the domain under Policy ¶ 4(b)(iii). See Travant Solutions, Inc. v. Cole, FA 203177 (Nat. Arb. Forum Dec. 6, 2003) (“Respondent registered and used the domain name in bad faith, pursuant to Policy ¶ 4(b)(iii), because it is operating on behalf of a competitor of Complainant . . .”); see also EBAY, Inc. v. MEOdesigns, D2000-1368 (Dec. 15, 2000) (finding that a respondent registered and used the domain name <eebay.com> in bad faith where it used the domain name to promote competing auction sites).
In the circumstances here presented, we may comfortably presume that Respondent receives income, whether in the form of click-through fees or otherwise, by employing the website resolving from the contested domain name to host links to the websites of competitors of Complainant. Respondent’s registration and use of the domain name in this manner is evidence of bad faith registration and use of the <tatget.com> domain under Policy ¶ 4(b)(iv). See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that a respondent’s use of the <arizonashuttle.net> domain name, which contained a complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to a website offering competing travel services came within the strictures of Policy ¶ 4(b)(iv)); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where a respondent diverted Internet users searching for a complainant to its own website, likely profiting in the process).
We have already noted that Respondent’s registration and use of the disputed <tatget.com> domain name constitutes typo-squatting. Typo-squatting is itself evidence that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that a respondent’s registration and use of the <nextell.com> domain name was in bad faith because the domain epitomized typosquatting in its purest form); see also Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled a complainant’s MICROSOFT mark).
For all of these reasons, the Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <tatget.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 22, 2011
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