Target Brands, Inc v. Above.com Domain Privacy
Claim Number: FA1306001505089
Complainant is Target Brands, Inc (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Above.com Domain Privacy (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <0target.com>, <earget.com>, <ta4rget.com>, <tadrget.com>, <tafrget.com>, <tarbget.com>, <targeft.com>, <targegt.com>, <targiet.com>, <targut.com>, <targvet.com>, <tayget.com>, <toarget.com>, <tsarget.com>, <twarget.com>, <tzarget.com>, and <warget.com>, registered with Above.com Pty Ltd.
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.
Darryl C. Wilson, 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, Above.com Pty Ltd. confirmed by e-mail to the National Arbitration Forum that the <0target.com>, <earget.com>, <ta4rget.com>, <tadrget.com>, <tafrget.com>, <tarbget.com>, <targeft.com>, <targegt.com>, <targiet.com>, <targut.com>, <targvet.com>, <tayget.com>, <toarget.com>, <tsarget.com>, <twarget.com>, <tzarget.com>, and <warget.com> domain names are registered with Above.com Pty Ltd. and that Respondent is the current registrant of the names. Above.com Pty Ltd. has verified that Respondent is bound by the Above.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 19, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 9, 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@0target.com, postmaster@earget.com, postmaster@ta4rget.com, postmaster@tadrget.com, postmaster@tafrget.com, postmaster@tarbget.com, postmaster@targeft.com, postmaster@targegt.com, postmaster@targiet.com, postmaster@targut.com, postmaster@targvet.com, postmaster@tayget.com, postmaster@toarget.com, postmaster@tsarget.com, postmaster@twarget.com, postmaster@tzarget.com, and postmaster@warget.com. Also on June 19, 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 15, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 names 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.
iv. Complainant has used the domain name <target.com> since 1997 to serve customers online.
i. Policy ¶ 4(a)(i)
1. The disputed domain names are confusingly similar to the TARGET mark as the disputed domain names differ only by a single character from the mark.
ii. Policy ¶ 4(a)(ii)
1. Respondent has not been commonly known by the disputed domain names, nor has Complainant authorized Respondent’s use of the mark in any way.
2. Respondent is not using the disputed domain names to provide a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. Respondent uses the disputed domain names 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 using some of the disputed domain names to redirect users to a website featuring products or services in direct competition with Complainant, disrupting Complainant’s business.
2. Respondent uses the disputed domain names in connection with generating revenue as a “click through” website. Respondent takes advantage of Complainant’s well known mark to achieve commercial gain.
3. Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith.
Respondent failed to submit a Response in this proceeding.
Complainant is Target Brands, Inc., a corporation that list its address as Minneapolis, MN, USA. The Complainant owns numerous trademarks, service marks and logos dating back to its first use of the TARGET mark in 1962. Complainant operates nearly 2,000 stores in the USA, has offices both domestically and abroad, and generates significant sales revenue on its official website located at <target.com>.
Respondent is Above.com Domain Privacy which list its address as Victoria, Australia. Respondent’s registrar is listed as having the same address. Respondent registered <0target.com> on February 18, 2008; <earget.com> and <targiet.com> on March 15, 2008; <toarget.com> on March 24, 2009; <targegt.com> on June 22, 2009; <warget.com> on September 6, 2009; <targut.com> on February 21, 2010; <ta4rget.com>, <tadrget.com>, <tarbget.com>, <targeft.com>, <targvet.com>, <tayget.com>, <tsarget.com>, <twarget.com> and <tzarget.com> on January 4, 2011; and <tafrget.com> on June 19, 2012.
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 names are confusingly similar to the TARGET mark as the disputed domain names differ by only a single character from the mark. The disputed domain names either add a single letter or number, or replace a letter in the mark. The Panel finds that the disputed domain names are 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 generic top level domain (“gTLD”) “.com” fails to distinguish the domain names from Complainant’s TARGET mark and therefore the disputed domain names are confusingly similar to Complainant’s 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 (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes that 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). The Complainant has met this burden.
Complainant contends Respondent is not commonly known by the disputed domain name as the WHOIS record suggests Respondent is known as an entity other than the mark at issue. Further, Complainant asserts it has never 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. 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 disputed domain names to provide a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. Complainant contends that Respondent uses the disputed domain names 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 Respondent receives consideration from those firms for driving traffic to them. As Complainant has provided the Panel with evidence that the websites resolving from the disputed domain names display links to products and services 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). 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”).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
Because the Respondent has not provided a response to this action the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
Complainant argues Respondent is using some of the disputed domain names to redirect users to a website featuring products or services in direct competition with Complainant, disrupting Complainant’s business. Complainant asserts such disruption reveals Respondent’s bad faith. Complainant has provided the Panel with evidence that the websites resolving from the disputed domain names display links to products and services that directly compete with Complainant’s business. The Panel finds the Respondent acted in bad faith by attracting users to a website that connects users to Complainant’s competitors. See Univ. of Texas Sys. v. Smith, FA 1195696 (Nat. Arb. Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)).
Complainant further argues Respondent uses the disputed domain names 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 pages provide links to Complainant’s competitors and Respondent appears to currently benefit commercially from intentionally misleading Internet users via the domain names by receiving click-through-fees. 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 Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. Panels have consistently held that typosquatting is meant to take advantage of 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.
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <0target.com>, <earget.com>, <ta4rget.com>, <tadrget.com>, <tafrget.com>, <tarbget.com>, <targeft.com>, <targegt.com>, <targiet.com>, <targut.com>, <targvet.com>, <tayget.com>, <toarget.com>, <tsarget.com>, <twarget.com>, <tzarget.com>, and <warget.com> domain names be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: July 29, 2013
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