Target Brands, Inc. v. Adot LP
Claim Number: FA0701000892759
Complainant is Target Brands, Inc. (“Complainant”), represented by Deborah
Shinbein, of Faegre & Benson, LLP, 1700 Lincoln
St., Suite 3200, Denver, CO 80203-4532.
Respondent is Adot LP (“Respondent”), 4501
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwwtargetcenter.com>, registered with Go Daddy Software, Inc.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 24, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of February 13, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@wwwtargetcenter.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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." 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 makes the following assertions:
1. Respondent’s <wwwtargetcenter.com> domain name is confusingly similar to Complainant’s TARGET mark.
2. Respondent does not have any rights or legitimate interests in the <wwwtargetcenter.com> domain name.
3. Respondent registered and used the <wwwtargetcenter.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Target Brands, Inc., holds several trademark
registrations with the United States Patent and Trademark Office (“USPTO”) for
the TARGET mark (i.e. Reg. No. 845,193 issued on
Respondent registered the <wwwtargetcenter.com>
domain name on
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."
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.”).
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.
Complainant has established rights in the TARGET mark through registration of the mark with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Respondent’s <wwwtargetcenter.com>
domain name is confusingly similar to Complainant’s TARGET mark
because Respondent’s domain name uses Complainant’s mark in its entirety and
merely adds to it the descriptive term “center” while also leaving out the period
after “www.” This is particularly
confusing since Complainant uses the TARGET mark in connection with an
entertainment facility called the “
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent does not have rights
or legitimate interests in the <wwwtargetcenter.com>
domain name. Complainant must
make a prima facie case and then the burden shifts to Respondent to
prove that it does have rights or legitimate interests pursuant to Policy ¶
4(a)(ii). The Panel assumes that
Respondent does not have rights or legitimate interests in the disputed domain
name here because Respondent has failed to respond to the Complaint. See G.D. Searle v. Martin Mktg., FA
118277 (Nat. Arb. Forum
Complainant alleges that Respondent is using the <wwwtargetcenter.com> domain name to
redirect Internet users seeking Complainant’s goods and services to
Respondent’s website that displays links to sites advertising similar goods and
services. Such use is for the presumed
profit of Respondent through click-through-fees. Respondent’s use of the domain name to profit
through click-through-fees is not a use in connection with a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See Pioneer Hi-Bred Int’l Inc. v. Chan,
FA 154119 (Nat. Arb. Forum May 12, 2003) (finding that the respondent did not
have rights or legitimate interests in a domain name that used the
complainant’s mark and redirected Internet users to a website that pays domain
name registrants for referring those users to its search engine and pop-up
advertisements); see also Wells Fargo &
Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding
that using a domain name to direct Internet traffic to a website featuring
pop-up advertisements and links to various third-party websites 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) because the registrant
presumably receives compensation for each misdirected Internet user).
Additionally, Respondent has offered no evidence and no
evidence is present in the record suggesting that Respondent is commonly known
by the <wwwtargetcenter.com> domain name.
Respondent’s WHOIS information identifies Respondent as “Adot LP.” Therefore, Respondent has failed to establish
rights or legitimate interests in the <wwwtargetcenter.com>
domain name under Policy ¶ 4(c)(ii).
See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
Finally, Respondent’s <wwwtargetcenter.com>
domain name simply omits the period after the “www,” which
constitutes typosquatting and is itself evidence that Respondent lacks rights
or legitimate interests in the disputed domain name. See Diners Club Int’l Ltd.
v. Domain Admin******It's all in the name******, FA 156839 (Nat. Arb. Forum
June 23, 2003) (holding that the respondent’s <wwwdinersclub.com> domain
name, a typosquatted version of the complainant’s DINERS CLUB mark, was
evidence in and of itself that the respondent lacks rights or legitimate
interests in the disputed domain name vis á vis the complainant); see also
RE/MAX Int’l, Inc. v. Seocho, FA 142046 (Nat. Arb. Forum Feb. 25, 2003)
(finding that the respondent has no rights or legitimate interests in the
<wwwremax.com> domain name as it is merely using the complainant’s mark
to earn profit from pop-up advertisements).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Respondent has registered and is using the <wwwtargetcenter.com> domain name, which
is confusingly similar to Complainant’s TARGET mark, in order to redirect
Internet users to Respondent’s website advertising similar goods and services
for the assumed profit of Respondent.
The Panel finds that because Respondent’s domain name is confusingly
similar to Complainant’s TARGET mark, Internet users may become confused as to
Complainant’s affiliation with the website.
Presumably, Respondent is profiting from this confusion through click-through
fees. As a result, Respondent’s use of
the <wwwtargetcenter.com> domain
name to advertise goods and services similar to Complainant’s constitutes bad
faith registration and use pursuant to Policy ¶ 4(b)(iv). See Associated
Newspapers Ltd. v. Domain Manager, FA
201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the
<mailonsunday.com> domain name is evidence of bad faith pursuant to
Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's
competitors and Respondent presumably commercially benefited from the misleading
domain name by receiving ‘click-through-fees.’”); see also State Farm Mut. Auto. Ins. Co. v. Northway,
FA 95464 (Nat. Arb. Forum Oct. 11, 2000) (finding that the respondent
registered the domain name <statefarmnews.com> in bad faith because the
respondent intended to use the complainant’s marks to attract the public to the
web site without permission from the complainant); see also Hancock Fabrics, Inc. v. Active Advantage, Inc., FA 204111 (Nat. Arb. Forum Dec. 4, 2003) (“Respondent’s
use of the <hancockfabric.com> domain name, a domain name confusingly
similar to Complainant’s HANCOCK FABRICS mark, to redirect Internet traffic to
a website that provides a selection of jokes demonstrates Respondent’ bad faith
use of the disputed domain name because Respondent has created a likelihood of
confusion as to the source, sponsorship, affiliation or endorsement of
Respondent’s website, which evidences bad faith registration and use under
Policy ¶ 4(b)(iv).”).
Additionally,
Respondent’s <wwwtargetcenter.com>
domain name capitalizes on common mistakes of Internet users who
simply leave out the period after “www.”
Respondent’s registration of the disputed domain name constitutes
typosquatting and is additional evidence of bad faith registration and use
pursuant to Policy ¶ 4(a)(iii). See
Black &
Decker Corp. v. Khan, FA 137223 (Nat. Arb. Forum Feb. 3,
2003) (finding the <wwwdewalt.com> domain name was registered to “ensnare
those individuals who forget to type the period after the ‘www’ portion of [a]
web-address,” which was evidence that the domain name was registered and used
in bad faith); see also Nat’l Ass’n of Prof’l Baseball League, Inc. v.
Zuccarini, D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting … is the
intentional misspelling of words with [the] intent to intercept and siphon off
traffic from its intended destination, by preying on Internauts who make common
typing errors. Typosquatting is
inherently parasitic and of itself evidence of bad faith.”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwtargetcenter.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: February 20, 2007
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