Target Brands, Inc. v. N/A / Sheilas Croggins
Claim Number: FA1112001419975
Complainant is Target Brands, Inc. (“Complainant”), represented by Jodi A. DeSchane of Faegre & Benson LLP, Minnesota, USA. Respondent is N/A / Sheilas Croggins (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <onlinetargetcorp.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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 13, 2011; the National Arbitration Forum received payment on December 15, 2011.
On December 14, 2011, Directi Internet Solutions Pvt. Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <onlinetargetcorp.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 disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On December 22, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 11, 2012 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@onlinetargetcorp.com. Also on December 22, 2011, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 January 19, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed John J. Upchurch 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <onlinetargetcorp.com> domain name is confusingly similar to Complainant’s TARGET mark.
2. Respondent does not have any rights or legitimate interests in the <onlinetargetcorp.com> domain name.
3. Respondent registered and used the <onlinetargetcorp.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Target Brands, Inc., has operated retail stores under the TARGET mark since 1962. Complainant owns numerous trademark registrations with the United States Patent and Trademark Office ("USPTO") for the TARGET mark (e.g., Reg. No. 845,193 registered February 27, 1968).
Respondent, N/A / Sheilas Croggins, registered the <onlinetargetcorp.com> domain name on November 21, 2011. Respondent’s domain name resolves to a website purporting to offer participation in a paid “Mystery Shoppers” program while also sending out fake checks and letters that are masked to appear to be coming from Complainant.
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 has submitted evidence of its many trademark registrations that it owns with the USPTO for the TARGET mark (e.g., Reg. No. 845,193 registered February 27, 1968). The Panel finds that this information is sufficient for Complainant to establish Policy ¶ 4(a)(i) rights in the TARGET mark. 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 Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
The second prong of a Policy ¶ 4(a)(i) analysis is comparing the disputed domain name with the mark to determine whether the domain name is confusingly similar or identical to the mark. The domain name at issue in the present case is <onlinetargetcorp.com>. Therefore, the domain name contains Complainant’s TARGET mark entirely while adding the prefix “online” and the suffix “corp.” Further, the domain name adds the generic top-level domain (“gTLD”) “.com,” which the Panel notes is a required element of all domain names. The Panel finds that these additions to Complainant’s mark are not sufficient to make the domain name distinct from the mark under Policy ¶ 4(a)(i). See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); 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 finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have any rights or legitimate interests in the <onlinetargetcorp.com> domain name. Complainant is required to make a prima facie case in support of these allegations under Policy ¶ 4(a)(ii). Once Complainant has produced a prima facie case, the burden shifts to Respondent to show it does have a right or legitimate interest in the disputed domain name. 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)). The Panel finds that Complainant has established a prima facie case. Due to the Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not have any right or legitimate interest in the disputed domain name. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). Nonetheless, the Panel will continue to evaluate the evidence on record to determine whether Respondent has rights and legitimate interests in the <onlinetargetcorp.com> domain name under Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by the <onlinetargetcorp.com> domain name. Complainant alleges that Respondent is not authorized or licensed to use Complainant’s TARGET mark. The WHOIS information identifies the domain name registrant as “N/A / Sheilas Croggins,” which the Panel finds is not similar to Respondent’s <onlinetargetcorp.com> domain name. Further, Respondent has failed to respond or submit evidence that it is commonly known by the domain name at issue. Therefore, the Panel finds that Respondent is not commonly known by the <onlinetargetcorp.com> domain name pursuant to Policy ¶ 4(c)(ii) based upon all evidence on record, including the WHOIS information. 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 Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant contends that not only is Respondent not making a legitimate use of the domain name, but that Respondent is using the disputed domain name for fraudulent purposes. Complainant asserts that Respondent is attempting to pass itself off as Complainant in order to deceive Internet users into giving up their personal and financial information. Complainant contends that the disputed domain name resolves to a website that purports to offer money, in the form of a check, to users who choose to be “Mystery Shoppers.” Respondent does this by sending fake checks and letters to those users that sign up for such a program that are entitled, “Target Corporation, PO Box 1296, Minneapolis, MN 55440.” The letters and checks also contain Complainant’s “bullseye” logo and appear to be coming from Complainant’s company. The Panel agrees with Complainant and finds that Respondent is attempting to pass itself off as Complainant in order to acquire the personal and financial information of Internet users that happen upon the resolving website and choose to sign up. Therefore, the Panel finds that Respondent is not making 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 Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”); see also Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent is attempting to profit from its use of the domain name by creating a likelihood of confusion with Complainant and its marks. Respondent has registered the <onlinetargetcorp.com> domain name to attract Internet users to its website. The Panel finds that Respondent likely profits from its receipt of personal and financial information. Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); 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 the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Further, Complainant has alleged and shown that Respondent is attempting to pass itself off as Complainant in order to acquire the personal and financial information of Complainant’s customers. Respondent uses the domain name in question to purportedly offer a “Mystery Shopper” program for which it sends users checks that appear to be from Complainant’s corporation. However, these checks are fake and are designed to capture those users’ financial information. The Panel finds that Respondent is attempting to pass itself off as Complainant in order to conduct this phishing scheme. Therefore, the Panel finds that Respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudently [sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also 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).
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 <onlinetargetcorp.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: February 1, 2012
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