Target Brands, Inc. v. Domain Admin / Whois protection, this company does not own this domain name s.r.o.
Claim Number: FA1701001714161
Complainant is Target Brands, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Domain Admin / Whois protection, this company does not own this domain name s.r.o. (“Respondent”), Czech Republic.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <targst.com>, registered with Gransy, s.r.o. d/b/a subreg.cz.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 25, 2017; the Forum received payment on January 25, 2017.
On January 27, 2017, Gransy, s.r.o. d/b/a subreg.cz confirmed by e-mail to the Forum that the <targst.com> domain name is registered with Gransy, s.r.o. d/b/a subreg.cz and that Respondent is the current registrant of the name. Gransy, s.r.o. d/b/a subreg.cz has verified that Respondent is bound by the Gransy, s.r.o. d/b/a subreg.cz 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 January 27, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 16, 2017 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@targst.com. Also on January 27, 2017, 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 Forum transmitted to the parties a Notification of Respondent Default.
On February 23, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
Complainant registered the TARGET mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 845,193, registered July 24, 1967). See Amended Compl., at Attached Ex. E. Respondent’s <targst.com> mark is confusingly similar as it misspells the TARGET mark by replacing the “e” with the nearby letter “s”. The domain name also incorporates the generic top-level domain “.com” (“gTLD”).
Respondent has no rights or legitimate interests in <targst.com>. Respondent is not commonly known by the TARGET mark, nor is Respondent sponsored or legitimately affiliated with Complainant in any way. Complainant has not given Respondent permission to use the mark in a domain name. Respondent failed to respond to Complainant’s attempts to resolves the dispute, and failed to respond to the Complaint. Respondent doesn’t use the disputed domain for any bona fide offering of goods or services because the domain name directs the user to a generic website with generic links to third-party websites, some of which are in direct competition with Complainant, presumably to receive pay-per-click fees. See Amended Compl. at Attached Ex. H.
Respondent registered and uses the <targst.com> in bad faith. Respondent’s WHOIS information is apparently falsified or incomplete. Respondent uses the disputed domain name to generate revenue as a click through website, redirecting users to websites in direct competition with Complainant. Respondent takes advantage of Complainant’s well known mark to achieve a wrongful competitive advantage and commercially benefit. Additionally, by offering links to third party websites in direct competition to Complainant, Respondent disrupts Complainant’s business. Further, Respondent listed the disputed domain name for sale to the public. See Amended Compl. at Attached Ex. I. Furthermore, Respondent engages in typosquatting behavior by changing one letter with an adjacent letter.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered <targst.com> on July 24, 2015.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that the Respondent has no rights or legitimate interests in or to the disputed domain name; and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
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(f), 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 (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.”).
The Panel finds that the disputed domain name, <targst.com> is confusingly similar to the Complainant’s valid and subsisting trademark, TARGET. Complainant has adequately pled its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely supplanting the “e” in “target” with and “s” and adding the g TLD “.com” to the end. This is insufficient to distinguish the disputed domain name from the Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Panel further finds that Respondent has no apparent rights or legitimated interests in or to the disputed domain name. Respondent is not commonly known by the disputed domain name. Complainant mistakenly argues that Respondent is not commonly known by the trademark; however, as the disputed domain name and the Complainant’s trademark are so nearly identical, they are considered the same for the sake of the argument that Respondent is not commonly known by either.
A privacy service was used by Respondent, and the identity of the registrant remains unknown. See Amended Compl. at Attached Ex. I. Additionally, Respondent apparently has no license or permission to register the disputed domain name. As such, the Panel finds that there is no evidence in the record that would indicate Respondent is commonly known as the disputed domain name.
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name, <targst.com>, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the TARGET mark in any way. A privacy service was used by Respondent when Respondent registered the disputed domain name and the identity of the registrant remains unknown. See Amended Compl. at Attached Ex. I. Therefore, there is no evidence in the record that would indicate Respondent is commonly known by the disputed domain name. The Panel finds, therefore, find under Policy ¶ 4(c)(ii) Respondent has not been commonly known by the disputed domain name.
Also, the Panel finds that Respondent’s actions are not a bona fide offering of goods or services because Respondent, likely to garner pay-per-click fees, directs users using the disputed domain name to websites in direct competition with Complainant. Prior Panels have concluded that this conduct demonstrates lack of a bona fide offering of goods or services. See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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 also Yahoo! Inc. v. Web Master, FA 127717 (Forum Nov. 27, 2002) (finding that the respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with the complainant, was not a bona fide offering of goods or services). Complainant offer that the disputed domain name directs users to a generic website with generic links to third-party websites in direct competition with Complainant, including <walmart.com> and <webcrawler.com>. See Amended Compl. at Attached Ex. H, K. Respondent presumably does this to receive pay-per-click fees.
Therefore, the Panel finds that Respondent’s actions are not a bona fide offering of goods or services or a legitimate noncommercial or fair use and, therefore, lack any rights or legitimate interests to the disputed domain name.
The Panel also finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Respondent apparently uses the disputed domain name to commercially benefit as a click through website, redirecting users to websites in direct competition with Complainant. Prior Panels have found this behavior to constitute bad faith. See Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)). Respondent apparently offers links to competitors on the disputed domain name in attempts to commercially benefit from a click through website. See Compl. at Attached Ex. H, K. The Panel, therefore, finds that Respondent attempted to commercially benefit in use of the disputed domain name in bad faith.
The Panel finds that Respondent takes advantage of Complainant’s well known mark to achieve a wrongful competitive advantage and disrupt Complainant’s business. Using a domain name to offer hyperlinks resolving to websites in direct competition with complainants services has been used as evidence of disrupting businesses. See Health Republic Insurance Company v. Above.com Legal, FA1506001622088 (Forum July 10, 2015) (“The use of a domain name’s resolving website to host links to competitors of a complainant shows intent to disrupt that complainant’s business, thereby showing bad faith in use and registration under Policy ¶ 4(b)(iii).”). The Panel finds that Respondent attempts to benefit from the infamous TARGET mark and disrupt its business.
Further, Complainant claims that Respondent listed the disputed domain name for sale to the public. Offering a website for sale has consistently been held as evidence of bad faith. See Staples, Inc. v. lin yanxiao, FA1505001617686 (Forum June 4, 2015) (“Respondent’s offering to sell the disputed domain name to a third party (in this case, the general public) supports a finding of bad faith registration and use.”). Complainant states that Respondent offers to sell the disputed domain name to the general public for an unspecified amount through its WHOIS information. See Compl. at Attached Ex. I. Accordingly, the Panel finds the Respondent has engaged in bad faith use and registration.
Complainant contends that Respondent engages in typosquatting behavior by changing one letter. A finding of typosquatting can evince bad faith. See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). Complainant states that Respondent attempts to benefit from a common typing mistake made by users, changing the “e” to “s” in its TARGET mark. Thus, the Panel finds evidence of typosquatting, constituting bad faith use and registration.
Finally, given the totality of the circumstances and the fame of Complainant’s trademark, the Panel finds that Respondent registered the disputed domain name with full knowledge of Complainant’s prior rights in and to its trademark, TARGET.
As such, the Panel finds that the Respondent has engaged in bad faith use and registration.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <targst.com> domain name be transferred from Respondent to Complainant.
__________________________________________________________________
Kenneth L. Port, Panelist
Dated: February 24, 2017
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