Target Brands, Inc. v. Mike Williams
Claim Number: FA1808001800330
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is Mike Williams (“Respondent”), Wisconsin, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <survey-target.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 August 7, 2018; the Forum received payment on August 7, 2018.
On August 8, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <survey-target.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 August 8, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 28, 2018 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@survey-target.com. Also on August 8, 2018, 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 August 29, 2018, 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 is one of the most famous brands in the field of retail department stores. Complainant currently serves customers through approximately 1,750 stores in the United States, maintains offices in a number of other countries around the world, and is traded on the New York Stock Exchange. Complainant has rights in the TARGET mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 845,193, registered Feb. 27, 1968). See Compl. Ex. E. Respondent’s <survey-target.com> domain name is identical or confusingly similar to Complainant’s mark as it adds the generic term “survey,” a hyphen, and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <survey-target.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the domain name currently resolves to an inactive webpage. See Compl. Ex. F-1. Further, Respondent uses the domain name to impersonate Complainant and send fraudulent emails to consumers, where it purports to send a cashier’s check in exchange for iTunes gift card of a significant value. See Compl. Ex. F-2.
Respondent registered and uses the <survey-target.com> domain name in bad faith. Respondent uses the domain name to intentionally attempt to attract, for commercial gain, internet users by creating a likelihood of confusion with Complainant’s mark as to source, sponsorship, affiliation, or endorsement of Respondent’s website. Respondent’s commercial gain stems from the fraudulent use of the domain name as part of an email phishing scheme. See Compl. Ex. F-2. Such fraudulent use of the domain name also violates Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the <survey-target.com> domain name on May 24, 2018.
The Panel finds that the disputed domain name is confusingly similar with Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that 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, <survey-target.com>, is confusingly similar to Complainant’s valid and subsisting trademark, TARGRET. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by taking the trademark in total and adding the generic word “survey” and hyphen and the gTLD “.com.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar with Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no rights, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name.
Further, Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the domain name currently resolves to an inactive webpage. See Compl. Ex. F-1. Further, Respondent uses the disputed domain name to impersonate Complainant and send fraudulent emails to consumers, where it purports to send a cashier’s check in exchange for iTunes gift cards of a significant value. See Compl. Ex. F-2.
As such, Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant argues that Respondent registered and uses the disputed domain name in bad faith by creating a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name to commercially benefit through fraudulent means. Using a disputed domain name that trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Complainant claims Respondent uses the disputed domain name to pass itself off as Complainant in efforts to receive financial gain through solicitation of a survey, and provides evidence to support this assertion. See Compl. Ex. F-2. Accordingly, the Panel finds that Respondent attempted to commercially benefit from Complainant’s mark through fraudulent means in bad faith under Policy ¶ 4(b)(iv).
Relatedly, Complainant argues that Respondent uses the disputed domain name to fraudulently send emails to Complainant’s customers in hopes of receiving financial information. Phishing schemes through fraudulent email communications can evince bad faith under Policy ¶ 4(a)(iii). See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”). Complainant provides a copy of the alleged fraudulent emails sent by Respondent, where it appears that Respondent solicits a survey to users in exchange for money and mandates that users do not disclose the email to anyone. See Compl. Ex. F-2. The memo Respondent attaches to the email uses the TARGET name and logo on the letterhead and purports to give users money. Id. The Panel finds that Respondent’s apparent phishing scheme does not amount to good faith use under Policy ¶ 4(a)(iii).
Further, the Panel finds that Respondent had actual knowledge of Complainant’s rights and interests in and to the trademark TARGET. Given the fame of the mark and the totality of the circumstances, the Panel finds that Respondent must have had actual knowledge of Complainant’s rights and interests in the mark TARGET.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <survey-target.com> domain name transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: August 30, 2018
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