Target Brands, Inc. v. jugnu Kumar / tinku singh
Claim Number: FA2103001935126
Complainant is Target Brands, Inc. ("Complainant"), represented by Steven M. Levy of FairWinds Partners, LLC, Pennsylvania, USA. Respondent is jugnu Kumar / tinku singh ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <checktargetgift.com> and <targetgiftcheck.com>, registered with GoDaddy.com, LLC.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 2, 2021; the Forum received payment on March 2, 2021.
On March 3, 2021, GoDaddy.com, LLC confirmed by email to the Forum that the <checktargetgift.com> and <targetgiftcheck.com> domain names are registered with GoDaddy.com, LLC; that jugnu Kumar is the current registrant of the domain name <checktargetgift.com>; and that tinku singh is the current registrant of the domain name <targetgiftcheck.com>. (As discussed infra, the Panel considers these to be aliases for a single person or entity.) GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 March 8, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 29, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to email@example.com, firstname.lastname@example.org. Also on March 8, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 April 5, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant has alleged that the disputed domain names in this proceeding are effectively controlled by the same person or entity. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") provides that a "complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder."
The WIPO Overview of WIPO Panel Views on Selected UDRP Questions sets forth factors that are normally considered when a complainant is filed against multiple respondents:
[P]anels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.
Panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in or relevant aspects of (i) the registrants' identity(ies) including pseudonyms, (ii) the registrants' contact information including email address(es), postal address(es), or phone number(s), including any pattern of irregularities, (iii) relevant IP addresses, name servers, or webhost(s), (iv) the content or layout of websites corresponding to the disputed domain names, (v) the nature of the marks at issue (e.g., where a registrant targets a specific sector), (vi) any naming patterns in the disputed domain names (e.g., <mark-country> or <mark-goods>), (vii) the relevant language/scripts of the disputed domain names particularly where they are the same as the mark(s) at issue, (viii) any changes by the respondent relating to any of the above items following communications regarding the disputed domain name(s), (ix) any evidence of respondent affiliation with respect to the ability to control the disputed domain name(s), (x) any (prior) pattern of similar respondent behavior, or (xi) other arguments made by the complainant and/or disclosures by the respondent(s).
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.11 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/.
Complainant asserts that the disputed domain names are registered in the names of aliases for a single entity, noting (inter alia) the obvious similarities between the domain names; the fact that they were registered within a few weeks of one another at the same registrar, using the same mailing address and telephone number for the registrant and the same nameservers; and the fact that they are being used to host similar websites that seek to gather information from users relating to Target store gift cards. The Panel also notes that Respondent has not objected to being treated as a single entity for purposes of this proceeding. The Panel concludes that it is appropriate under Paragraph 3(c) of the Rules to treat the disputed domain names as being controlled by the same person or entity.
Complainant operates retail department stores and provides related products and services, including gift cards. Complainant has used the TARGET mark in connection with this business for over 50 years. Complainant has approximately 1,750 stores in the United States and offices in many other countries; it reported revenues of over $77 billion in 2019. Complainant owns longstanding United States trademark registrations for TARGET in both standard character and design form; the mark is also registered in the European Union.
Respondent registered the <checktargetgift.com> domain name in December 2020, and is using it for a website that displays Complainant's mark, logo, and color scheme, and invites users to enter data from a Target gift card in order to check the balance on the card. Complainant alleges that the website seeks to obtain information enabling Respondent or others to steal the value stored on its gift cards.
Respondent registered the <targetgiftcheck.com> domain name in February 2021. This domain name is being used for a website that also displays Complainant’s mark and logo, and invites users to enter their name and email address. The website purports to offer information on how to access Complainant's gift card balance checking website and appears to link users to that site, but the links actually go to pages on Respondent's website. The site includes a disclaimer, in small type at the very bottom of the page, stating that it "is not associated with the Target." Complainant suggests that this website likely is designed to harvest user information, increase its search engine rankings, and perhaps improperly earn affiliate revenue, and that it may be intended for more nefarious use in the future. Both websites also include images taken from Complainant's website.
Complainant states that Respondent is not affiliated with Complainant and is not commonly known by the disputed domain names. Complainant contends on the above grounds that the disputed domain names <checktargetgift.com> and <targetgiftcheck.com> are confusingly similar to its TARGET mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used 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:
(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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, supra, § 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
Each of the disputed domain names <checktargetgift.com> and <targetgiftcheck.com> incorporates Complainant's registered TARGET trademark, adding the generic terms "gift" and "check" and appending the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Target Brands, Inc. v. Christian Grey, FA 1928766 (Forum Feb. 12, 2021) (finding <checktargetgiftcardbalance.com> confusingly similar to TARGET); Target Brands, Inc. v. Laurel Lance, FA 1889924 (Forum May 8, 2020) (finding <checktargetgiftbalance.com> confusingly similar to TARGET); Target Brands, Inc. v. qqmm / qqmm ZZOO, FA 1865974 (Forum Nov. 11, 2019) (finding <targetbalancecheck.com> confusingly similar to TARGET). The Panel considers the disputed domain names to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain names incorporate Complainant's registered mark without authorization, and they are being used for websites that display Complainant's mark and logo and otherwise impersonate Complainant, for what the Panel infers to be fraudulent purposes. Such conduct does not give rise to rights or legitimate interests under the Policy. See, e.g., Target Brands, Inc. v. Christian Grey, supra (finding lack of rights or interests in similar circumstances); Target Brands, Inc. v. Laurel Lance, supra (same); Target Brands, Inc. v. qqmm / qqmm ZZOO, supra (same);Target Brands, Inc. v. Jennifer Beyer, FA 1738027 (Forum July 31, 2017) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered two domain names incorporating and obviously intended to create confusion with Complainant's famous mark, and is using them to impersonate Complainant for what the Panel infers to be fraudulent purposes. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Target Brands, Inc. v. Christian Grey, supra (finding bad faith in similar circumstances); Target Brands, Inc. v. Laurel Lance, supra (same); Target Brands, Inc. v. qqmm / qqmm ZZOO, supra (same); Target Brands, Inc. v. Jennifer Beyer, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <checktargetgift.com> and <targetgiftcheck.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 7, 2021
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