Target Brands, Inc v. zheng zhongxing
Claim Number: FA1306001505074
Complainant is Target Brands, Inc (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is zheng zhongxing (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tartet.com> registered with XIN NET TECHNOLOGY CORPORATION.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 17, 2013; the National Arbitration Forum received payment on June 17, 2013. The Complaint was submitted in both English and Chinese.
On June 17, 2013, XIN NET TECHNOLOGY CORPORATION confirmed by e-mail to the National Arbitration Forum that the <tartet.com> domain name is registered with XIN NET TECHNOLOGY CORPORATION and that Respondent is the current registrant of the name. XIN NET TECHNOLOGY CORPORATION has verified that Respondent is bound by the XIN NET TECHNOLOGY CORPORATION 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 25, 2013, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of July 15, 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@tartet.com. Also on June 25, 2013, the Chinese language 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 18, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Debrett G. Lyons 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. Panel notes that the Registration Agreement is written in Chinese, making the language of the proceedings Chinese. Pursuant to Rule 11(a), Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English. Panel has issued its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and rules and principles of law that it deemed applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant asserts trademark rights in TARGET and alleges that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant is one of the largest retailers in the United States selling household products, apparel and accessories, electronic goods and foodstuffs by reference to the trademark TARGET;
2. Complainant owns, inter alia, United States Trademark Reg. No. 845,193 registered on February 27, 1968 for the word mark TARGET;
3. The disputed domain name was registered on November 14, 2002;
4. The domain name resolves to a website that features third-party links to companies and organizations offering goods and services in competition with Complainant.
5. There is no commercial agreement between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating its trademark.
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).
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry – a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
Paragraph 4(a)(i) of the Policy does not distinguish between registered and unregistered trademark rights. It is well established by former decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights. Since Complainant provides evidence of its United States Patent and Trademark Office trademark registration for TARGET, the Panel is satisfied that it has trademark rights in that word (see State Farm Mut. Auto. Ins. Co. v. Periasami Malain, FA 705262 (Nat. Arb. Forum June 19, 2006) (“Complainant’s registrations with the United States Patent and Trademark Office of the trademark, STATE FARM, establishes its rights in the STATE FARM mark pursuant to Policy, paragraph 4(a)(i).”).
Panel is also satisfied that the disputed domain name is confusingly similar to Complainant’s trademark. The disputed domain name differs from the trademark by the addition of the non-distinctive gTLD, “.com” and by substitution of the letter “t” for the letter “g” in the trademark. Neither the addition nor the alteration distinguishes the domain name from the trademark in any significant way so as to avoid confusion (see Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar; see also Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) finding <belken.com> confusingly similar to the complainant's BELKIN trademark.
Panel finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000).
The publicly available WHOIS information identifies Respondent as “zheng zhongxing” and so there is no prima facie evidence that Respondent might be commonly known by the disputed domain name. There is no evidence that Respondent has any trademark rights. There is no evidence that Complainant has authorized Respondent to use the trademark and Complainant denies any such authorization.
There is no evidence that the disputed domain name has been used in connection with a bona fide offering of goods or services prior to notice of the dispute. Complainant provides evidence that the domain name resolves to a website that carries links to the websites of third parties offering goods or services in competition with Complainant.
Panel finds that such use does not demonstrate a bona fide offering of goods or services or a legitimate noncommercial or fair use (see TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services; see also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not 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)).
Panel finds that Complainant has established a prima facie case and so the onus shifts to Respondent to establish a legitimate interest in the domain name. In the absence of a Response, that case is not rebutted and so Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and that it is being used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy but in these proceedings there is no need to examine those provisions since Panel is satisfied of Complainant’s claim that Respondent is a known cybersquatter which has registered the domain name in bad faith and used it in bad faith.
Complainant’s business is immense and was already very well known in 2002 when the domain name was registered. Panel is satisfied that it is more likely than not that respondent targeted Complainant’s trademark at that time. Complainant cites previous UDRP decisions adverse to Respondent to support that claim (for example, Bath & Body Works Brand Mgmt. Inc. v. zhongxing, FA 1432320 (Nat. Arb. Forum April 20, 2012); Jackson Nat’l Life Ins. Co. v. Zhongxing, D2007-0028 (WIPO March 7, 2007). Further, it is reasonable to draw the conclusion that the domain name is a simple case of typosquatting (see, for example, Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting).
Finally, the proven use of the domain name is in bad faith since it entails the use of a name confusingly similar to Complainant’s trademark to draw internet users to an online location where goods and services which compete with those sold or offered by Complainant are on offer.
Panel notes with concern that there is no explanation in Complaint as to why these Administrative Proceedings were brought more than ten years after registration of the domain name. The delay in bringing these proceeding is of such a magnitude that it should require explanation. Panel finds that there is insufficient reason in this case to examine whether there has been disentitling conduct on the part of Complainant but cautions Complainant to be more alert to that possibility in the future.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tartet.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: July 28, 2013
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