Target Brands, Inc. v. BellNames Privacy Protection Service / Whois Agent
Claim Number: FA1203001435303
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is BellNames Privacy Protection Service / Whois Agent (“Respondent”), Colorado, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tqrget.com>, registered with DropWeek.com, Inc.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 20, 2012; the National Arbitration Forum received payment on March 26, 2012.
On March 27, 2012, DropWeek.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <tqrget.com> domain name is registered with DropWeek.com, Inc. and that Respondent is the current registrant of the name. DropWeek.com, Inc. has verified that Respondent is bound by the DropWeek.com, Inc. 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 March 29, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 18, 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@tqrget.com. Also on March 29, 2012, 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 April 23, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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:
Respondent’s <tqrget.com> domain name, the domain name at issue, is confusingly similar to Complainant’s TARGET marks.
Respondent does not have any rights or legitimate interests in the domain name at issue.
Respondent registered and used the domain name at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the distinctive and world famous TARGET trademarks and their corresponding logos (the “TARGET Marks”). For many years, and long prior to the creation of the <tqrget.com> domain, Complainant commenced use of the TARGET Marks in connection with the advertising, marketing and operation of retail department stores, and other products and services related thereto. Since the inception of each of the TARGET Marks, Complainant Target has continually used such Marks in interstate commerce. Complainant owns rights in the TARGET mark through its multiple trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 818,410 registered November 8, 1966). Respondent registered the <tqrget.com> domain name at issue on February 17, 2012. Complainant has not licensed or otherwise authorized Respondent to use any form of the TARGET marks and Respondent is not commonly known by the domain name at issue. Through the use of a classic pay-per-click website, Respondent’s domain name diverts Complainant’s customers and potential customers to Respondent’s pay-per-click website and then to other websites which are not associated with Complainant and, in some cases, are associated with Complainant’s competitors.
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.
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 owns rights in the TARGET mark through its many trademark registrations with the USPTO (e.g., Reg. No. 818,410 registered November 8, 1966). The panels in Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007), and Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004), both held that registration of a mark with the USPTO establishes rights in that mark. By registering the mark with the USPTO, Complainant secured rights in the mark for the purposes of Policy ¶ 4(a)(i).
The <tqrget.com> domain name is confusingly similar to Complainant’s TARGET mark, in that the “minor misspelling” by replacing the letter “a” in the mark with the letter “q” creates a confusingly similar domain name. The disputed domain name also adds the generic top-level domain (“gTLD”) “.com.” In Delta Corporate Identity, Inc. v. SearchTerms, FA 590678 (Nat. Arb. Forum Dec. 14, 2005), the panel concluded that <dleta.com> was confusingly similar to the complainant’s DELTA mark. In Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003), the panel stated that adding a gTLD is irrelevant to determining whether a domain name is confusingly similar to a mark. The changes made in the <tqrget.com> domain name cause it to be confusingly similar to Complainant’s TARGET under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been established.
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.”).
Respondent is not commonly known by the <tqrget.com> domain name, and Respondent does not operate a business under the domain name or TARGET mark. The WHOIS information associated with the disputed domain name, which identifies the registrant as “BellNames Privacy Protection Service / Whois Agent.” Respondent did not respond to these proceedings and thus failed to support the inference that it is commonly known by the disputed domain name. Based on the WHOIS information and lack of other supporting evidence, Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
Respondent is not using the <tqrget.com> domain name in a manner connected with a bona fide offering of goods or services nor is it making a legitimate noncommercial or fair use of the domain name. The domain name leads to a “pay-per-click” website from which Respondent derives income, and the displayed hyperlinks correspond to websites owned by Complainant’s competitors. Using a domain name to operate a website that hosts hyperlinks for a commercial gain is not 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 Educ. Broad. Corp. v. DomainWorks Inc., FA 882172 (Nat. Arb. Forum Apr. 18, 2007) (holding that the respondent’s use of the contested domain name to maintain a commercial website with links to the products and services of the complainant’s competitors did not represent 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 also Skyhawke Techs., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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).”).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent uses the <tqrget.com> domain name to intentionally confuse consumers by attracting them to its website. Respondent receives compensation from the owners of the websites associated with the hyperlinks displayed on the resolving web page. The panel in AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000), held that the respondent’s domain name was registered and used in bad faith when it took advantage of Internet users’ mistakes by resolving to a website that displayed links to websites whose services were similar to those of complainants. In Zee TV USA, Inc. v. Siddiqi, FA 721969 (Nat. Arb. Forum July 18, 2006), the panel stated that the respondent was engaged in bad faith registration and use when it used a confusingly similar domain name to offer hyperlinks to third-party websites with competing services to those of the complainant. Respondent’s use of the confusingly similar domain name to attract customers to its website in order to make a profit demonstrates bad faith registration and use under Policy ¶ 4(b)(iv).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tqrget.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: April 24, 2012
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