Target Brands, Inc. v. jennifer beyer
Claim Number: FA1706001738027
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is jennifer beyer (“Respondent”), Iowa, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <targetbalance.com>, registered with Network Solutions, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 29, 2017; the Forum received payment on July 6, 2017.
On June 30, 2017, Network Solutions, LLC confirmed by e-mail to the Forum that the <targetbalance.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, LLC 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 July 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 27, 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@targetbalance.com. Also on July 7, 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 July 31, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant uses the TARGET mark in the operation of retail department stores and the sale of products and services related thereto, including groceries, pharmaceuticals, personal care products and gift cards.
Complainant holds a registration for the TARGET service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 845,193, registered February 27, 1968, and renewed for the second time on March 28, 2008.
Respondent registered the domain name <targetbalance.com> on or about January 23, 2017.
The domain name is confusingly similar to Complainant’s TARGET mark.
Respondent has not been commonly known by the domain name.
Respondent does not operate a business or other organization under the TARGET mark or the domain name, and Respondent does not own any trademark or service mark rights in the “Target” name.
Respondent does not use the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
Rather, the disputed domain name resolves to a fake TARGET gift card balance- checking site, which mimics a legitimate site used by Complainant.
Respondent uses this site to steal information about Internet users’ gift cards in order to use their funds itself.
Respondent has no rights to or legitimate interests in the domain name.
For its commercial gain, Respondent uses the domain name to attract Internet users to its website by creating a likelihood of confusion among them with regard to the possibility of Complainant’s sponsorship of or affiliation with the domain name and its resolving website.
Respondent knew of Complainant and its rights in the TARGET mark when it registered the domain name.
Respondent both registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name has been registered and is being used by Respondent 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:
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out 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) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum August 11, 2015):
There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark .... Due to Complainant’s … USPTO registration on the principal register …, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).
Turning to the central question posed by Policy ¶4(a)(i), we conclude from a review of the record that Respondent’s <targetbalance.com> domain name is confusingly similar to Complainant’s TARGET service mark. The domain name contains the mark in its entirety, merely adding the generic term “balance,” which relates to an aspect of Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum January 21, 2016) (finding that confusing similarity existed where a domain name contained a UDRP complainant’s entire mark and differed only by the addition of a generic or descriptive phrase and a Top Level Domain, the differences between the domain name and its contained trademark being insufficient to differentiate one from the other for the purposes of the Policy.
See also Trip Network Inc. v. Alviera, FA 914943 (Forum March 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). This is because every domain name requires a gTLD.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <targetbalance.com> domain name, and that Respondent does not operate a business or other organization under the TARGET mark or the domain name and does not own any trademark or service mark rights in the “Target” name. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “jennifer beyer,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in the domain name within the purview of Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that, because the relevant WHOIS record listed the registrant of a disputed domain name as “Dale Anderson,” that respondent was not commonly known by the <statefarmforum.com> domain name so as to satisfy the provisions of Policy ¶ 4(c)(ii)).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <targetbalance.com> domain name to resolve to a website that mimics a legitimate site of Complainant, and that Respondent uses this site to steal information about Internet users’ gift cards in order to use their funds itself. This employment of the domain name is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007):
Because respondent in this case is also attempting to pass itself off as complainant, presumably for financial gain, the Panel finds the respondent is not using the … domain name for 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).
Thus, the Panel finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the challenged <targetbalance.com> domain name, which we have found to be confusingly similar to Complainant’s TARGET service mark, to profit financially by
facilitating an illicit “phishing” scheme. See Juno Online Servs., Inc. v. Nelson, FA 241972 (Forum March 29, 2004):
‘Phishing’ involves the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit cards, passwords, social security numbers and other personal information to the ‘phishers’ who intend to use such information for fraudulent purposes.
Phishing schemes demonstrate bad faith in the registration and use, for personal gain, of a domain name that is confusingly similar to the mark of another. See
Wells Fargo & Co. v. Maniac State, FA 608239 (Forum January 19, 2006) (finding under Policy ¶ 4(a)(iii), bad faith registration and use where a respondent used a domain name fraudulently to acquire the personal financial information of a UDRP complainant’s online customers).
To the same effect, see also Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015):
Respondent uses the … domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the TARGET mark when it registered the <targetbalance.com> domain name. This is a further showing Respondent’s bad faith in registering the domain name. See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum August 16, 2007) (rejecting a respondent's contention that it did not register a domain name in bad faith where a panel found that that respondent knew of a UDRP complainant's rights in a mark when registering the domain name).
The Panel therefore finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <targetbalance.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 31, 2017
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