Target Brands, Inc. v. Moulinator Ltd, Inc / Moulinator
Claim Number: FA1202001428418
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is Moulinator Ltd, Inc / Moulinator (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tartget.com>, registered with Power Brand Center Corp.
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 February 7, 2012; the National Arbitration Forum received payment on February 14, 2012.
On February 14, 2012, Power Brand Center Corp. confirmed by e-mail to the National Arbitration Forum that the <tartget.com> domain name is registered with Power Brand Center Corp. and that Respondent is the current registrant of the name. Power Brand Center Corp. has verified that Respondent is bound by the Power Brand Center Corp. 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 14, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 5, 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@tartget.com. Also on February 14, 2012, 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 14, 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 <tartget.com> domain name is confusingly similar to Complainant’s TARGET mark.
2. Respondent does not have any rights or legitimate interests in the <tartget.com> domain name.
3. Respondent registered or used the <tartget.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
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."
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.
(4) 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.”).
Complainant claims rights in the TARGET mark under Policy ¶ 4(a)(i). In support of this claim, Complainant provides the Panel with copies of its trademark registration certificates for its TARGET mark (e.g., Reg. No. 818,410 registered November 8, 1966). See Complainant’s Exhibit E. In Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006), and Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006), the panels found that a USPTO trademark registration sufficiently demonstrates a complainant’s rights in a mark. In Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001), and Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007), the panels concluded that a complainant is not required to register a mark within the country the respondent resides or operates as long as the complainant holds a trademark with a national trademark authority. The Panel agrees with this precedent. The Panel holds that Complainant established rights in its TARGET mark pursuant to Policy ¶ 4(a)(i).
Complainant contends that Respondent’s <tartget.com> domain name is confusingly similar to Complainant’s TARGET mark because the disputed domain name contains a common misspelling of Complainant’s TARGET mark by adding the letter “t.” In Valpak Direct Mktg. Sys., Inc. v. Manila Indus., Inc., D2006-0714 (WIPO Aug. 17, 2006), and Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000), the panels held that the addition of a letter to a complainant’s mark fails to remove a disputed domain name from the realm of confusing similarity. The Panel notes that the disputed domain name also contains the generic top-level domain (“gTLD”) “.com.” In Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003), and Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002), the panels determined that the addition of a gTLD is irrelevant because all domain names require a top-level domain. In accordance with UDRP precedent, the Panel concludes that Respondent’s <tartget.com> domain name is confusingly similar to Complainant’s TARGET mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. 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 UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant alleges that Respondent is not commonly known by the <tartget.com> domain name because Respondent does not operate a business or other organization under the disputed domain name. The Panel notes that the WHOIS information identifies “Moulinator Ltd, Inc / Moulinator” as the registrant of the disputed domain name, which the Panel finds is not similar to the <tartget.com> domain name. See Complainant’s Exhibit B. The Panel notes that Respondent did not respond to this case and, therefore, did not provide with any affirmative evidence that it is commonly known by the disputed domain name. In M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006), and Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006), the panels found that a respondent is not commonly known by a disputed domain name if the evidence in the record and the WHOIS information did not establish such a fact. The Panel finds that the evidence in the record does not indicate that Respondent is commonly known by the disputed domain name, and determines that Respondent does not own rights and legitimate interests in the <tartget.com> domain name for the purposes of Policy ¶ 4(c)(ii).
Complainant argues that Respondent’s use of the disputed domain name to host competing hyperlinks is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Complainant provides the Panel with a screenshot of the resolving website that the Panel finds contains a list of hyperlinks. See Complainant’s Exhibit F. Complainant claims that the hyperlinks found on the resolving website resolve to Complainant’s competitors, such as Nordstrom, Bloomingdale’s, and Kohl’s. Complainant asserts that Respondent commercially benefits from these hyperlinks by receiving click-through and pay-per-click fees. In Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007), and Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007), the panels held that the hosting of competing hyperlinks for commercial gain is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of a disputed domain name. Therefore, the Panel finds that Respondent does not make a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the <tartget.com> domain name.
Complainant asserts that Respondent registered and uses the <tartget.com> domain name in bad faith under Policy ¶ 4(b)(iv) as Respondent is attempting to commercially gain from the disputed domain name. Complainant does not argue that Respondent is attempting to create confusion as to Complainant’s association or affiliation with the disputed domain name, but the Panel finds that Respondent’s registration and use of the confusingly similar disputed domain name indicates such a fact. In Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007), and Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006), the panels held that the hosting of competing hyperlinks and the respondent’s receipt of click-through fees implied that the respondent was attempting to commercially benefit from Internet users’ confusion as to Complainant’s association with the disputed domain name. The Panel concludes that Respondent registered and uses the <tartget.com> domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant also contends that in light of the fame and notoriety of Complainant's TARGET mark, it is inconceivable that Respondent could have registered the <tartget.com> domain name without actual and/or constructive knowledge of Complainant's rights in the mark. The Panel finds that any arguments of bad faith based on constructive notice are irrelevant, however, because UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel does agree with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name. The Panel finds that actual knowledge is adequate evidence of bad faith registration under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tartget.com> domain name be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: March 26, 2012
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