Target Brands, Inc. v. Apply flyfrontier
Claim Number: FA2202001983416
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy of FairWinds Partners LLC, District of Columbia, USA. Respondent is Apply flyfrontier (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <apply-target.com>, registered with NameCheap, Inc..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 7, 2022; the Forum received payment on February 7, 2022.
On February 7, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <apply-target.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 February 8, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 28, 2022 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@apply-target.com. Also on February 8, 2022, 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 March 4, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <apply-target.com> domain name is confusingly similar to Complainant’s TARGET mark.
2. Respondent does not have any rights or legitimate interests in the <apply-target.com> domain name.
3. Respondent registered and uses the <apply-target.com> domain name in bad faith.
B. Respondent did not file a Response.
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 Panel finds that Complainant has rights in the TARGET mark based on registration of the mark with the USPTO. See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”)
Respondent’s <apply-target.com> domain name uses Complainant’s TARGET mark and merely adds the descriptive term “apply,” a hyphen, and the “.com” gTLD. The addition of a descriptive term, punctuation, and a gTLD to a mark does not distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”) Thus, the Panel finds that Respondent’s <apply-target.com> domain name is confusingly similar to Complainant’s TARGET mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent lacks rights and legitimate interests in the <apply-target.com> domain name because Respondent is not commonly known by the disputed domain name. Respondent is not authorized to use the disputed domain name. The WHOIS information lists Respondent as “Apply flyfrontier.” Therefore, the Panel finds that Respondent is not commonly known by the domain name, and thus has no rights under Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); see also Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name).
Complainant also argues that Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, as Respondent uses the domain name to pass off as Complainant and phish for users’ personal information. Using a disputed domain name to pass off as a complainant in furtherance of a phishing scheme is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See ShipChain, Inc. v. 谢东东 / 谢东东, FA 1785189 (Forum June 21, 2018) (“The resolving webpages between Complainant’s and Respondent’s websites are virtually the same. Respondent’s use of the disputed domain name does not confer rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii).”); see also Virtu Financial Operating, LLC v. Lester Lomax, FA1409001580464 (Forum Nov. 14, 2014) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii) where the respondent was using the disputed domain name to phish for Internet users personal information by offering a fake job posting on the resolving website). Complainant provides screenshots of its own website and the resolving website for the disputed domain name, which are virtually identical, and shows that Respondent uses the disputed domain name to phish for users’ personal information, including social security numbers and driver license numbers. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has or rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <apply-target.com> domain name in bad faith because Respondent uses the disputed domain name to pass off as Complainant and phish for users’ personal information. The Panel agrees and finds bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also Amazon Technologies, Inc. v. jaskima smith, FA 1750160 (Forum Oct. 26, 2017) (finding the respondent registered and used the disputed domain name in bad faith to pass off as the complainant in an attempt to gain personal information from users who mistakenly access the website).
Furthermore, using a disputed domain name to phish for users’ personal information is also evidence of bad faith under Policy ¶ 4(a)(iii). See McKinsey & Company, Inc., and McKinsey Holdings, Inc. v. Privacy Protection, report abuse to / Registrar: DELTA-X Ltd., FA1409001580883 (Forum Oct. 25, 2014) (holding that the respondent had engaged in phishing, which is further evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii), when the respondent used the disputed domain name in an attempt to obtain Internet users’ personal information including their driver’s license number and name).
Complainant also contends that Respondent registered the disputed domain name with actual notice of Complainant’s rights in the TARGET mark based on the global fame of the mark. The Panel agrees and finds Respondent had actual knowledge of Complainant’s rights in the TARGET mark and therefore registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). 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).”); see also Chevron Intellectual Property LLC v. Eileen Boob, FA 1861000 (Forum Oct. 4, 2019) (“Complainant shows that Respondent uses the disputed domain name to pass off as Complainant. The Panel finds that this is evidence that Respondent knew of Complainant’s rights in the CHEVRON mark when it registered the disputed domain name, and constitutes bad faith under Policy ¶ 4(a)(iii).”)
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <apply-target.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 7, 2022
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