Target Brands, Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1901001825273
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xn--taret-tmc.com>, registered with Internet Domain Service BS Corp.
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 15, 2019; the Forum received payment on January 22, 2019.
On January 17, 2019, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <xn--taret-tmc.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 23, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 12, 2019 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@xn--taret-tmc.com. Also on January 23, 2019, 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 15, 2019, 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, Target Brands, Inc., operates widely recognized retail department stores. Complainant has rights in the TARGET mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 818,410, registered Nov. 8, 1966). See Compl. Ex. E. Respondent’s <tarɡet.com> domain name is confusingly similar to Complainant’s mark because Respondent includes the TARGET mark in the domain name, exchanges the letter “g” in the mark for the Unicode character “ɡ,” and adds a “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <tarɡet.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use. Rather, Respondent inactively holds the disputed domain name. Additionally, Respondent may be using the disputed domain name for fraud.
Respondent registered and uses the <tarɡet.com> domain name in bad faith. Respondent attempts to deceive users for commercial gain through its use of a confusingly similar domain name. Additionally, Respondent inactively holds the disputed domain name. Further, Respondent had actual knowledge of Complainant’s rights in the TARGET mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on April 12, 2018
The Panel finds that the disputed domain name is confusing similar to Complainant’s valid and subsisting trademark; that Respondent lacks any 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.”).
Preliminary Issue: Internationalized Domain Name
The disputed domain name, <tarɡet.com>, is an internationalized domain name (“IDN”) with the PUNYCODE translation of <xn--taret-tmc.com>. An IDN is a domain name that contains non-traditional characters, such as letters with diacritics or other non-ASCII characters. In order to display characters or symbols in a domain name, the terms of the domain name are encoded into a scheme such as PUNYCODE. For Respondent to display the <tarɡet.com> domain name, it first had to encode it into the <xn--taret-tmc.com> PUNYCODE scheme.
In the past, panels have found IDNs and their PUNYCODE translations to be equivalent. See Damien Persohn v. Lim, FA 874447 (Forum Feb. 19, 2007) (finding an internationalized domain name, <têtu.com>, and its PUNYCODE translation, <xn--ttu-fma.com>, to be one and the same under the Policy); see also Württembergische Versicherung AG v. Emir Ulu, D2006-0278 (WIPO May 4, 2006) (finding that the <xn--wrttembergische-versicherung-16c.com> should be considered as equivalent to the <württembergische-versicherung.com> domain name, based on previous panel decisions recognizing the relevance of I-nav software for translating German letters such as “ä” or “ü” into codes such as <xn--[name]-16c> and similar); see also Fujitsu Ltd. v. tete and Lianqiu Li, D2006-0885 (WIPO Oct. 12, 2006) (finding the <xn--zqsv0e014e.com> domain name to be an exact reproduction of the complainant’s Chinese trademark in a domain name). The Panel, therefore, that the <tarɡet.com> domain name is the same as its PUNYCODE translation, <xn--taret-tmc.com>, for purposes of this proceeding.
The Panel finds that the dispute domain name, <tarɡet.com>, is confusingly similar to Complainant’s valid and subsisting trademark, TARGET. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely adopted Complainant’s mark in total and exchanges the letter “g” in the mark for the Unicode character “ɡ,” and adds a “.com” generic top-level domain (“gTLD”). 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 to Complainant’s trademark.
The Panel further finds that Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the dispute domain name. Further, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use. Rather, Respondent inactively holds the disputed domain name.
Additionally, Complainant alleges that Respondent is using the disputed domain name for fraud; however, as it offers no evidence in support of this claim, this claim will be dismissed.
As such, the Panel finds that Respondent lacks any rights or legitimate interests in and to the disputed domain name.
The Panel further finds that Respondent has engaged in bad faith use and registration of the disputed domain name. Respondent uses a confusingly similar domain name to create a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or online location in order to attract users for commercial gain. Such use is evidence of bad faith under Policy ¶ 4(b)(iv). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”). Here, Complainant cites the confusing similarity between Complainant’s TARGET mark and Respondent’s <tarɡet.com> domain name, and suggests that the disputed domain name is likely being used for fraudulent activity such as phishing or identity theft. Again, however, Complainant provides no evidence for this contention. Respondent has clearly registered and is using a disputed domain name that is confusingly similar to Complainant’s mark, therefore, we can presume that an attempted misdirection of Internet users is happening. However, without actual proof for the further nefarious deeds that Complainant alleges, the Panel makes no findings in this regard.
Further, Respondent uses the disputed domain name in bad faith because Respondent inactively holds the disputed domain name. Inactive holding here is evidence of bad faith under Policy ¶ 4(a)(iii). See State Farm Mutual Automobile Insurance Company v. Dr. Keenan Cofield, FA 1799574 (Forum Sep. 10, 2018) (finding bad faith under Policy ¶ 4(a)(iii) where “the domain name initially resolved to a web page with a “website coming soon” message, and now resolves to an error page with no content.”). Complainant claims that the disputed domain name resolves to a webpage displaying a 404 Not Found error message. See Compl. Ex. F. Therefore, the Panel concludes that Respondent inactively holds the disputed domain name, and, therefore, registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).
Finally, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the TARGET mark prior to registering the disputed domain name. Actual knowledge of a complainant’s rights in a mark may support a finding of bad faith under Policy ¶ 4(a)(iii), and can be presumed when a mark is famous. See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”). Here, given the fame of Complainant’s mark and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s prior rights and interests in and to the trademark 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 <xn--taret-tmc.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: February 16, 2019
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