Target Brands, Inc v. Abadaba S.A.
Claim Number: FA1306001505082
Complainant is Target Brands, Inc (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Abadaba S.A. (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <targwt.com> registered with Fabulous.Com Pty Ltd.
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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 17, 2013; the National Arbitration Forum received payment on June 17, 2013.
On June 17, 2013, Fabulous.Com Pty Ltd confirmed by e-mail to the National Arbitration Forum that the <targwt.com> domain name is registered with Fabulous.Com Pty Ltd and that Respondent is the current registrant of the name. Fabulous.Com Pty Ltd has verified that Respondent is bound by the Fabulous.Com Pty Ltd 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 21, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 11, 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@targwt.com. Also on June 21, 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 17, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
i. Complainant owns the TARGET mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 845,193 registered on February 27, 1968).
ii. Complainant is the second largest retailer in the United States with stores in 49 states, and has global locations in India and Canada.
iii. Complainant uses the TARGET mark to offer customers household products, apparel and accessories, electronic and entertainment products, and groceries, among other goods. Complainant has made extensive advertising efforts, which has generated widespread consumer recognition. In fact, 96% of American consumers recognize Complainant’s bulls-eye logo.
iv. Complainant has used the domain name <target.com> since 1997 to serve customers online.
i. Policy ¶ 4(a)(i)
1. The disputed domain name is confusingly similar to the TARGET mark as the disputed domain name differs only by a single character from the mark, and the addition of a generic top-level domain (“gTLD”).
ii. Policy ¶ 4(a)(ii)
1. Respondent has not been commonly known by the disputed domain name, nor has Complainant authorized Respondent’s use of the mark in any way.
2. Respondent is not using the disputed domain name to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Respondent uses the disputed domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent presumably receives consideration from those firms for driving traffic to them.
iii. Policy ¶ 4(a)(iii)
1. Respondent is a recalcitrant, serial cybersquatter. Previous UDRP panels have made findings adverse to Respondent. Further, Respondent holds registrations on other domain names that appear to be straightforward examples of typosquatting, but are not presently in dispute.
2. Respondent is using the disputed domain name to redirect users to a website featuring products or services in direct competition with Complainant, disrupting Complainant’s business.
3. Respondent uses the disputed domain name in connection with generating revenue as a “click through” website. Respondent takes advantage of Complainant’s well known mark to achieve commercial gain.
4. Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant has rights in its TARGET mark.
2. Respondent’s <targwt.com> domain name is confusingly similar to Complainant’s mark.
3. Respondent has no rights to or legitimate interests in the domain name.
4. Respondent registered and used the domain name in bad faith.
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 claims to own the TARGET mark through its trademark registration with the USPTO (e.g., Reg. No. 845,193 registered on February 27, 1968). The Panel finds that Complainant’s USPTO registration establishes its right in the TARGET mark under Policy ¶ 4(a)(i), despite the fact that Respondent resides outside of the United States. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Complainant argues the disputed domain name is confusingly similar to its mark as <targwt.com> differs by only a single character from the TARGET mark, namely, the “e” is replaced with a “w.” The Panels find that the disputed domain name is confusingly similar to Complainant’s mark because the minor misspelling of a mark in a domain name serves to increase, rather than decrease, confusing similarity. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”). Further, the Panel finds that the addition of the gTLD “.com” fails to distinguish the domain name from Complainant’s TARGET mark and therefore, the Panel finds that the disputed domain name is confusingly similar to the mark under Policy ¶ 4(a)(i). See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
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 argues that Respondent has not been commonly known by the disputed domain name. Complainant contends the WHOIS record does not suggest Respondent is known by the disputed domain. The Panel notes that the WHOIS information identifies the domain registrant as “Abadaba S.A.” Further, Complainant contends it has not authorized Respondent’s use of the mark in any way. The Panel notes that Respondent did not submit a Response to refute Complainant’s contentions. Therefore, the Panel finds that Respondent is not commonly known by the domain name in dispute 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 domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant argues that Respondent is not using the <targwt.com> domain to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Respondent uses the disputed domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Respondent presumably receives consideration from those firms for driving traffic to them. The Panel notes that Complainant includes a screen shot of the resolving page, in Exhibit H, which reveals the page provides a link to Macy’s. Previous panels have found that a domain name used to offer goods or services that compete with a complainants’ business does not provide a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”). As Complainant has provided the Panel with evidence that the websites resolving from the disputed domain name displays links to websites that directly compete with Complainant’s business, the Panel finds Respondent’s use of the disputed domain name is 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).
Complainant contends Respondent is a recalcitrant, serial cybersquatter. Complainant argues that Respondent’s pattern of bad-faith registration and use is evidence of Respondent’s current bad faith. In Exhibit N, Complainant cites previous UDRP decisions adverse to Respondent to support the claim. See NIC Industries, Inc. v. Abadaba S.A., FA 1448503 (Nat. Arb. Forum July 17, 2012); see also Finish Line, Inc. v. Abadaba S.A., FA 1442808 (Nat. Arb. Forum June 21, 2012). Further, Complainant argues that Respondent’s bad faith is shown by Respondents holdings of registrations on other domain names that appear to be straightforward examples of typosquatting, but are not presently in dispute. In Exhibit O, Complainant cites Respondent’s registration of <homedeput.com>, <eqlifax.com>, and <accuvu.com>. The Panel notes that previous panels have generally not found bad faith where a respondent holds domain names that appear to be examples of cybersquatting upon the marks of unrelated third-parties, and are not directly at issue. However, previous panels have recognized evidence of bad faith where a respondent has a history of bad faith as demonstrated by past UDRP decisions. 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). The Panel finds evidence of bad faith under Policy ¶ 4(b)(ii) as Complainant has included evidence of adverse UDRP decisions against Respondent.
Complainant argues that Respondent is using the disputed domain name to redirect users to a website featuring products or services in direct competition with Complainant, disrupting Complainant’s business. Complainant contends such disruption reveals Respondent’s bad faith. The Panel notes that Complainant’s Exhibit H includes a screen shot of the resolving page, which includes a link to Macy’s. Previous panels have found evidence of bad faith where a respondent provides links to competitors of the complainant’s through the confusingly similar domain name. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”). The Panel finds evidence of bad faith under Policy ¶ 4(b)(iii) because Complainant has provided the Panel with evidence showing Respondent provides links to Complainant’s competitors.
Complainant further argues Respondent uses the disputed domain name in connection with generating revenue as a “click through” website. Complainant claims Respondent is taking advantage of Complainant’s well known mark to achieve its own commercial gain, which shows Respondent’s bad faith. The Panel finds evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the resolving page provides links to Complainant’s competitors, including Macy’s and Aeropostale (see Complainant’s Ex. H), and Respondent likely receives click-through fees by intentionally misleading Internet users into associating Complainant with the domain name. See Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”).
Complainant argues that Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. Panels have consistently held that typosquatting is a practice that takes advantage of common and basic typographical errors, and is thus motivated by bad faith. See 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. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel finds evidence of bad faith under Policy ¶ 4(a)(iii) as Respondent diverts users who misspell Complainant’s mark away from their intended destination.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <targwt.com> domain name be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: July 30, 2013
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