Target Brands, Inc. v. Hemang Infrastructure Private Ltd.
Claim Number: FA1104001386287
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is Hemang Infrastructure Private Ltd. (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <trget.com> and <tsrget.com>, registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 29, 2011; the National Arbitration Forum received payment on May 4, 2011.
On May 2, 2011, Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com confirmed by e-mail to the National Arbitration Forum that the <trget.com> and <tsrget.com> domain names are registered with Directi Internet Solutions Pvt. Ltd. d/b/a Publicdomainregistry.com and that Respondent is the current registrant of the names. 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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 5, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 25, 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@trget.com and postmaster@tsrget.com. Also on May 5, 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 June 1, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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" 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <trget.com> and <tsrget.com> domain names are confusingly similar to Complainant’s TARGET mark.
2. Respondent does not have any rights or legitimate interests in the <trget.com> and <tsrget.com> domain names.
3. Respondent registered and used the <trget.com> and <tsrget.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Target Brands, Inc., is a retail department store serving customers through approximately 1,750 stores in the United States. Complainant owns numerous trademarks for the TARGET mark with the United States Patent and Trademark Office (“USPTO”):
Reg. No. 818,410 issued November 8, 1966;
Reg. No. 845,193 issued February 27, 1968;
Reg. No. 845,615 issued March 5, 1968;
Reg. No. 1,146,216 issued January 20, 1981; and
Reg. No. 1,282,569 issued June 19, 1984
Respondent, Hemang Infrastructure Private Ltd., registered the <trget.com> domain name on November 16, 2000 and the <tsrget.com> domain name on December 12, 2001. The disputed domain names redirect Internet users to the <complimentarygiftcards.com> domain name, a website which displays the TARGET mark and logo and contains a bogus, information-harvesting gift card offer.
Respondent has also been the respondent in at least three other UDRP proceedings in which the disputed domain names were transferred to the respective complainants. See, e.g., Allstate Ins. Co. v. Hemang Infrastructure Priv. Ltd., D2011-0261 (WIPO Apr. 8, 2011); LEGO Juris A/S v. Hemang Infrastructure Priv. Ltd., D2010-1847 (WIPO Jan. 11, 2011); AOL Inc. v. Hemang Infrastructure Priv. Ltd., FA 1358011 (Nat. Arb. Forum Dec. 20, 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 owns numerous trademarks for the TARGET mark with the USPTO:
Reg. No. 818,410 issued November 8, 1966;
Reg. No. 845,193 issued February 27, 1968;
Reg. No. 845,615 issued March 5, 1968;
Reg. No. 1,146,216 issued January 20, 1981; and
Reg. No. 1,282,569 issued June 19, 1984.
The Panel determines that these trademark registrations with the USPTO prove that Complainant has established rights in the TARGET mark pursuant to Policy ¶ 4(a)(i), despite that Respondent lives or operates outside the U.S. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction).
Complainant argues that the <trget.com> and <tsrget.com> domain names are confusingly similar to Complainant’s TARGET mark because both domain names differ from Complainant’s mark only by a single letter, either by omitting the letter “a” or by replacing the letter “a” with the letter “s.” Both domain names also add the generic top-level domain (“gTLD”) “.com” to Complainant’s mark. The Panel finds that misspelling Complainant’s mark by a single letter is insufficient to differentiate the disputed domain names from Complainant’s mark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also 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”). The Panel likewise holds that the added gTLD does not eliminate confusing similarity. 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.”). The Panel accordingly finds that Respondent’s <trget.com> and <tsrget.com> domain names are confusingly similar to Complainant’s TARGET mark for the purposes of Policy ¶ 4(a)(i).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks rights and legitimate interests in the disputed domain names. Pursuant to Policy ¶ 4(a)(ii), once Complainant has established a prima facie case, the burden shifts to Respondent to show its rights and legitimate interests in the disputed domain names. The Panel finds that Complainant has sufficiently established a prima facie case in these proceedings. Because Respondent has failed to respond to the allegations against it, the Panel may assume that Respondent lacks rights and legitimate interests in the disputed domain names. See Swedish Match UK Ltd. v. Admin. Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007) (finding that once a prima facie case has been established by the complainant, the burden then shifts to the respondent to demonstrate its rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)); 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, however, elects to consider the evidence in the record to determine if Respondent has any rights or legitimate interests in the disputed domain name according to the factors of Policy ¶ 4(c).
Complainant asserts that Respondent does not operate a business or other organization under the TARGET mark or <trget.com> and <tsrget.com> domain names. The WHOIS information for the disputed domain names identifies the registrant as “Hemang Infrastructure Private Limited,” which does not reflect any association between Respondent and the disputed domain names. As a result, the Panel concludes that Respondent is not commonly known by the disputed domain names and does not possess rights and legitimate interests according to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); 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 contends that Respondent’s <trget.com> and <tsrget.com> domain names redirect Internet users to the <complimentarygiftcards.com> domain name, whose resolving website displays Complainant’s TARGET mark and logo in connection with a bogus, information-harvesting gift card offer. This “phishing” website, wholly unrelated to Complainant, that also presumably generates profit for Respondent in the form of referral fees is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Nat. Arb. Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent has previously been the respondent in at three other UDRP proceedings in which the disputed domain names were transferred to the respective complainants. See, e.g., Allstate Ins. Co. v. Hemang Infrastructure Priv. Ltd., D2011-0261 (WIPO Apr. 8, 2011); LEGO Juris A/S v. Hemang Infrastructure Priv. Ltd., D2010-1847 (WIPO Jan. 11, 2011); AOL Inc. v. Hemang Infrastructure Priv. Ltd., FA 1358011 (Nat. Arb. Forum Dec. 20, 2010). The Panel finds that this history of adverse UDRP proceedings involving Respondent indicates a pattern of domain name registration that supports a finding of bad faith registration and use pursuant to Policy ¶ 4(b)(ii). See Armstrong Holdings, Inc. v. JAZ Assocs., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that the respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names that infringe upon others’ famous and registered trademarks); see also 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 the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
Complainant alleges that Respondent’s <trget.com> and <tsrget.com> domain names redirect to the <complimentarygiftcards.com> domain name. Complainant argues that this domain name hosts a website owned by a third-party that offers bogus gift cards in exchange for consumers providing their personal information. Complainant contends that Respondent uses Complainant’s mark in the disputed domain names and on the resolving website in order to attract Internet users and mislead them into believing that Complainant is somehow affiliated with or endorsing this resolving website. Complainant asserts that Respondent profits from this scheme because it receives referral fees from the third-party website owner each time an Internet users is redirected to the site and provides his or her personal information. The Panel finds that Respondent’s efforts to profit from the misuse of Complainant’s mark which attracts and confuses Complainant’s customers demonstrates bad faith registration and use according to Policy ¶ 4(b)(iv). See 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 the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
Complainant argues that the third-party website resolving from the disputed domain names offers bogus gift cards in exchange for the provision of Internet users’ personal information. Complainant alleges that this information is then used for marketing purposes and possibly even identity theft. As such, this site is characterized as a phishing website, which is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name).
The Panel finds 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 <trget.com> and <tsrget.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: June 6, 2011
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