Target Brands, Inc. v. Simon Rahman
Claim Number: FA2111001972093
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy of FairWinds Partners LLC, District of Columbia, USA. Respondent is Simon Rahman (“Respondent”), Bangladesh.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <targetpayandbenefits.review> and <targetehr.me>, registered with NameSilo, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 5, 2021; the Forum received payment on November 5, 2021.
On November 5, 2021, NameSilo, LLC confirmed by e-mail to the Forum that the <targetpayandbenefits.review> and <targetehr.me> domain names are registered with NameSilo, LLC and that Respondent is the current registrant of the names. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 November 8, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 29, 2021 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@targetpayandbenefits.review, postmaster@targetehr.me. Also on November 8, 2021, 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 December 5, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
A. Complainant
Complainant contends as follows:
Complainant Target Brands, Inc. is a corporation engaged principally in retail sales.
Complainant has rights in the TARGET mark, based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <targetpayandbenefits.review> and <targetehr.me> domain names are confusingly similar to Complainant’s TARGET mark. The first adds the descriptive phrase “pay and benefits” with spaces removed and the generic top-level domain (“gTLD”) “.review”. The second adds the descriptive term “EHR”, which Complainant states is an abbreviation for “electronic human resources”, and the gTLD “.me”.
Respondent does not have rights or legitimate interests in the <targetpayandbenefits.review> and <targetehr.me> domain names. Respondent is not licensed or authorized to use Complainant’s TARGET mark and is not commonly known by the disputed domain names. Instead, Respondent appears to be profiting off of monetized advertisements on these pages, collecting users’ names and email addresses, and diverting traffic from Complainant’s site through passing off.
Respondent registered and uses the <targetpayandbenefits.review> and <targetehr.me> domain names in bad faith. The at-issue domain names include Complainant’s trademark and strongly implies a connection therewith. Respondent appears to be attempting to imply affiliation with Complainant’s mark to pursue financial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the TARGET mark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the TARGET trademark.
Respondent uses the at-issue domain names to pretend it is affiliated with Complainant so that it may benefit from advertising and collect email addresses.
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 Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain names are each confusingly similar to a trademark in which Complainant has rights.
Complainant shows that it has a USPTO registration for its TARGET trademark. Such registration is sufficient to demonstrate Complainant’s rights in the TARGET mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Respondent’s <targetpayandbenefits.review> and <targetehr.me> domain names each contain Complainant’s TARGET trademark followed by a suggestive generic term ‑either “payandbenefits” or “ehr” ( “electronic human resources”)‑ and a top-level domain name ‑either “.review” or “.me”‑. The differences between Respondent’s domain names and Complainant’s trademark are insufficient to distinguish either domain name from the Complainant’s TARGET mark for the purposes of Policy ¶ 4(a)(i). In fact, the included generic terms suggest Complainant’s business related activities and thus add to any confusion between the trademark and at-issue domain names. Therefore, the Panel concludes that Respondent’s <targetpayandbenefits.review> and <targetehr.me> domain names are each confusingly similar to Complainant’s trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain names identifies the domain names’ registrant as “Simon Rahman” and the record before the Panel contains no evidence that otherwise tends to prove that Respondent is commonly known by either the <targetpayandbenefits.review> or the <targetehr.me> domain name. The Panel therefore concludes that Respondent is not commonly known by either <targetpayandbenefits.review> or <targetehr.me> for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s <targetpayandbenefits.review> and <targetehr.me>domain names fake an affiliation or sponsorship by Complainant. Upon browsing to such addresses internet visitors are delivered to a website or websites displaying Complainant’s trademark and other intellectual property along with advertisements for computer software and an input form labeled “Leave a Comment.” The form requires website visitors to leave their names and email addresses. Internet users seeking Complainant’s official website are thus initially likely to be confused into believing they are visiting such a website, when they are not. Respondent’s use of the domain names indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See e.g. Fox Media LLC v. William Smith, FA 1920442 (Forum Dec. 28, 2020) (“Using a confusingly similar domain name to host pay-per-click hyperlinks and advertisements may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) or (iv).”).
Given the forgoing, Complainant satisfies its initial burden and shows Respondent’s lack of rights and legitimate interests in the at-issue domain names under Policy ¶ 4(a)(ii).
The at-issue domain names were each registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present from which the Panel concludes that Respondent registered and used the at-issue domain names in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Respondent registered and uses the <targetpayandbenefits.review> and <targetehr.me> domain names to deceive internet users so that it might gain commercially. Notably, Respondent uses the at-issue domain names to give the impression that that Respondent is somehow affiliated with Complainant so that it may trade off the goodwill resident in Complainant’s TARGET trademark. Doing so is disruptive to Complainant’s business and shows Respondent’s bad faith registration and use of the at-issue domain names pursuant to Policy ¶¶ 4(b)(iii) and (iv). See BBY Solutions, Inc. v. Grant Ritzwoller, FA 1703389 (Forum Dec. 21, 2016) (finding bad faith because the <bestbuyus.com> domain name was obviously connected with the complainant’s well-known BEST BUY mark, thus creating a likelihood of confusion strictly for commercial gain), see also Ontel Products Corporation v. waweru njoroge, FA 1762229 (Forum Dec. 22, 2017) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iii) and (iv) through the respondent’s registration and use of the infringing domain name to reference the complainant’s products and offer competitive and/or counterfeit products).
Additionally, Respondent had actual knowledge of Complainant’s rights in the TARGET mark when it registered <targetpayandbenefits.review> and <targetehr.me> as domain names. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s registration of multiple domain names containing Complainant’s trademark juxtaposed with terms that suggests Complainant’s business and legitimate internet presence. Respondent’s registration of the two confusingly similar domain names without having rights or interests in such domain names, while having knowledge of Complainant’s rights therein, further shows Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering 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 <targetpayandbenefits.review> and <targetehr.me> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 6, 2021
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