national arbitration forum

 

DECISION

 

Target Brands, Inc. v. PPA Media Services / Ryan G Foo

Claim Number: FA1306001503446

 

PARTIES

Complainant is Target Brands, Inc (“Complainant”), represented by CitizenHawk, Inc., California, USA.  Respondent is PPA Media Services / Ryan G Foo (“Respondent”), Chile.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com>, registered with Internet.bs Corp.

 

PANEL

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.

 

Tyrus R. Atkinson, Jr., as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum electronically on June 5, 2013; the National Arbitration Forum received payment on June 5, 2013.

 

On June 9, 2013, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names are registered with Internet.bs Corp. and that Respondent is the current registrant of the names.  Internet.bs Corp. has verified that Respondent is bound by the Internet.bs 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 June 10, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 1, 2013 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@tadget.com, postmaster@taraget.com, postmaster@targewt.com, postmaster@targfet.com, postmaster@terget.com, postmaster@tyarget.com.  Also on June 10, 2013, 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 July 8, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., 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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

a)    Complainant is the owner of the TARGET mark.

a.    The mark is used in connection with retail department store, retail grocery store, prescription compounding and dispensing, bakery, and restaurant and snack bar services. Complainant is the owner of the United States Patent and Trademark Office (“USPTO”) registration for the TARGET mark (Reg. No. 845,193 registered Feb. 27, 1968).

b)    The <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names are confusingly similar to the TARGET mark.

a.    The domain names incorporate the TARGET mark and merely misspell the mark by a single letter. Additionally, the addition of the generic top-level domain (“gTLD”) “.com” is irrelevant.

c)    Respondent is not commonly known by the disputed domain names.

a.    Respondent, at the time of registration of the domain names, had no trademark or intellectual property rights in the domain names. The WHOIS records for the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names demonstrate that Respondent is known as an entity other than the trademark associated with Complainant, and Complainant has neither licensed, authorized, nor permitted Respondent to register domain names incorporating the TARGET mark.

d)    The disputed domain names are not being used in a way that may be considered a bona fide offering of goods or services.

a.    The disputed domain names are used to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Presumably, Respondent received pay-per-click fees from these linked websites.

e)    Respondent’s willingness to sell the disputed domain names is evidence of bad faith.

a.    The WHOIS records for the disputed domain names lists that the domain names are for sale. The fact that the offers to sell the domain names were not made specifically to Complainant or a third party is irrelevant as a general offer to sell a domain name demonstrates bad faith.

f)     Respondent is a serial cybersquatter.

a.    Searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in a pattern of such behavior. See, e.g., Aeropostale Procurement Co., Inc. v. PPA Media Servs. / Ryan G Foo, FA 1493293 (Nat. Arb. Forum May 24, 2013); Homer TLC, Inc. v. PPA Media Servs. / Ryan G Foo, FA 1491786 (Nat. Arb. Forum May 17, 2013); AutoZone Parts, Inc. v. PPA Media Servs. / Ryan G Foo, FA 1492382 (Nat. Arb. Forum May 15, 2013).

g)    Respondent’s registration and use of the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names disrupts Complainant’s business.

a.    Respondent utilizes confusingly similar domain names and links to competing goods and services as a way to divert potential customers of Complainant to Respondent’s own website.

h)    Respondent uses the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names as a bad faith means to generate revenue by hosting click-through websites.

a.    Respondent uses the disputed domain names to take advantage of Complainant’s TARGET mark to achieve a wrongful competitive advantage so that it may commercially gain. Respondent’s attempt to mislead Internet users by displaying competing and non-competing links via confusingly similar domain names is evidence of bad faith.

i)      The disputed domain names represent a classic example of typosquatting.

a.    Each of the disputed domain names differs from the TARGET mark by a single letter. The slight misspellings of the TARGET mark in the disputed domain names are meant to take advantage of Internet users’ typographical errors.

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

1.     Complainant has rights in its TARGET mark.

2.    Respondent’s <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <target>, and <tyarget.com> domain names are confusingly similar to Complainant’s mark.

3.    Respondent has no rights to or legitimate interests in the domain names.

4.    Respondent registered and used the domain names in bad faith.

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

 

Complainant contends that it is the owner of the TARGET mark. Complainant asserts that the mark is used in connection with retail department store, retail grocery store, prescription compounding and dispensing, bakery, and restaurant and snack bar services. Complainant demonstrates to the Panel that Complainant is the owner of a USPTO registration for the TARGET mark (Reg. No. 845,193 registered Feb. 27, 1968). Panels have previously held that the registration of a mark, regardless of the location of the parties, is evidence of having established rights in a mark. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Therefore, the Panel  finds that Complainant has rights in the TARGET mark pursuant to Policy ¶ 4(a)(i).

 

Complainant next alleges that the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names are confusingly similar to the TARGET mark. Complainant asserts that the domain names incorporate the TARGET mark and merely misspell the mark by a single letter. In Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000), the panel held that the deviation from a mark by a single character serves to increase rather than decrease confusing similarity. Additionally, Complainant argues that the addition of the gTLD “.com” is irrelevant. The panel in Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000), agreed, finding that the addition of a gTLD had no bearing on a Policy ¶ 4(a)(i) analysis. Therefore, the Panel finds that Respondent’s <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names are confusingly similar to the TARGET mark pursuant to Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

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 asserts that Respondent is not commonly known by the disputed domain names. According to Complainant, Respondent, at the time of registration of the domain names, had no trademark or intellectual property rights in the domain names. Complainant also notes that the WHOIS records for the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names demonstrate that Respondent is known as an entity other than the trademark associated with Complainant, and Complainant has neither licensed, authorized, nor permitted Respondent to register domain names incorporating the TARGET mark. The Panel notes that the WHOIS records for the disputed domain names list “PPA Media Services / Ryan G Foo” as the domain name registrant. As such, the Panel finds that Respondent is not commonly known by the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names pursuant 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).

 

Complainant alleges that the disputed domain names are not being used in a way that may be considered a bona fide offering of goods or services. Complainant argues that the disputed domain names are used to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Complainant presumes that Respondent received pay-per-click fees from these linked websites. Panels have determined that the display of links, whether competitive or otherwise, is not a use which falls within the protective bounds of Policy ¶¶ 4(c)(i) and 4(c)(iii). See Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Accordingly, the Panel finds that Respondent’s display of third-party links on the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.

 

Registration and Use in Bad Faith

 

Complainant claims that Respondent’s willingness to sell the disputed domain names is evidence of bad faith. Complainant notes that the WHOIS records for the disputed domain names list that the domain names are for sale. Complainant alleges that the fact that the offers to sell the domain names were not made specifically to Complainant or a third party is irrelevant as a general offer to sell a domain name demonstrates bad faith. In Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000), the panel held that a general offer to sell a disputed domain name was clear evidence of bad faith registration and use. As such, the Panel finds that Respondent’s willingness to relinquish its hold on the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names is evidence of bad faith under Policy ¶ 4(b)(i).

 

Complainant argues that Respondent is a serial cybersquatter. Complainant notes that searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in a pattern of such behavior. See, e.g., Aeropostale Procurement Co., Inc. v. PPA Media Servs. / Ryan G Foo, FA 1493293 (Nat. Arb. Forum May 24, 2013); Homer TLC, Inc. v. PPA Media Servs / Ryan G Foo, FA 1491786 (Nat. Arb. Forum May 17, 2013); AutoZone Parts, Inc. v. PPA Media Servs / Ryan G Foo, FA 1492382 (Nat. Arb. Forum May 15, 2013). Panels have held that a respondent who has been subject to numerous prior, adverse UDRP decisions has developed a pattern of acting in bad faith and that bad faith may be inferred in subsequent proceedings. 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 the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants). Therefore, the Panel finds that Respondent’s bad faith is evident by its history of having registered and used disputed domain names in bad faith under Policy ¶ 4(b)(ii).

 

Complainant contends that Respondent’s registration and use of the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names disrupts Complainant’s business. Complainant states that Respondent utilizes confusingly similar domain names and links to competing goods and services as a way to divert potential customers of Complainant to Respondent’s own website. In Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007), the panel held that the display of competitive links to third-party websites was a disruption to the complainant’s own expected consumer base given that the consumers were diverted to the respondent’s website. Given this precedent, the Panel finds that Respondent’s registration and use of the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names is evidence of bad faith under Policy ¶ 4(b)(iii).

 

Complainant next alleges that Respondent uses the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names as a bad faith means to generate revenue by hosting click-through websites. Complainant argues that Respondent uses the disputed domain names to take advantage of Complainant’s TARGET mark to achieve a wrongful competitive advantage so that Respondent may commercially gain. Complainant believes that Respondent’s attempt to mislead Internet users by displaying competing and non-competing links via confusingly similar domain names is evidence of bad faith. The Panel finds that Respondent’s attempt to commercially gain is achieved by confusing Internet users into believing there to be some affiliation between the disputed domain names and Complainant. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”). The Panel finds this to be true.  The Panel finds that Respondent registered and uses the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names in bad faith pursuant to Policy ¶ 4(b)(iv).

 

Complainant asserts that the disputed domain names represent a classic example of typosquatting. Complainant notes that each of the disputed domain names differs from the TARGET mark by a single letter. Complainant argues that the slight misspellings of the TARGET mark in the disputed domain names are meant to take advantage of Internet users’ typographical errors. Panels have found that the misspelling of a mark in a domain name by a single letter is a clear typosquatting scheme and meant to take advantage of the inadvertent mistypings of Internet users. See Nextel Commcns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005) (finding that the respondents registration and use of the <nextell.com> domain name was in bad faith because the domain name epitomized typosquatting in its purest form). Therefore, the Panel finds that Respondent’s typosquatting demonstrates bad faith under Policy ¶ 4(a)(iii).

 

DECISION

Having  established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <tadget.com>, <taraget.com>, <targewt.com>, <targfet.com>, <terget.com>, and <tyarget.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

Tyrus R. Atkinson, Jr., Panelist

Dated:  July 22, 2013

 

 

 

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