Target Brands, Inc. v. grhgfhgh hgfhgfh / treytrt
Claim Number: FA2207002003527
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy of FairWinds Partners LLC, District of Columbia, USA. Respondent is grhgfhgh hgfhgfh / treytrt (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <target24h.com>, registered with NameCheap, Inc..
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 8, 2022; the Forum received payment on July 8, 2022.
On July 10, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <target24h.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 July 15, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 4, 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@target24h.com. Also on July 15, 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.
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 retail stores which sale a variety of goods, including groceries, clothing, and personal care products. Complainant has rights in the TARGET mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., 818,410, registered Nov. 8, 1966). The <target24h.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark and added the descriptive term “24h” and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <target24h.com> domain because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s TARGET mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because the Respondent uses the disputed domain name to pass its self off as affiliated with Complainant and to perpetuate a phishing scheme.
Respondent has registered and uses the <target24h.com> domain name in bad faith because Respondent registered and uses the disputed domain name to create bad faith attraction for commercial gain and to disrupt Complainant’s business. In addition, Respondent failed to respond to Complainant’s cease and desist letter, used a privacy service to shield its identity, and provided false WHOIS information. Lastly, 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.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <target24h.com> 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 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”).
Complainant asserts rights in the TARGET mark based on registration with the United States Patent and Trademark Office. Registration with the USPTO is generally sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides evidence of its registration with the USPTO for the TARGET mark (e.g., 818,410, registered Nov. 8, 1966). The Panel finds that Complainant has rights in the TARGET mark under Policy ¶ 4(a)(i).
Complainant argues that the <target24h.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark and added the descriptive term “24h” and the “.com” generic top level domain (“gTLD”). Domain names which incorporate the entire mark are usually considered confusingly similar, while adding a gTLD generally creates no distinction between a complainant’s mark and a disputed domain name under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Further, adding additional terms, including numbers, may not create a sufficient distinction. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Twentieth Century Fox Film Corporation v. Domain Admin / PrivacyProtect.org / Denis Ferulev, FA 1652313 (Forum Jan. 19, 2016) (“Complainant notes that the domain name contains the recognised acronym for its FAMILY GUY mark, along with the number ‘24’ … the Panel finds that the <fg24.biz> domain name is confusingly similar to the FAMILY GUY mark under Policy ¶ 4(a)(i).”). Respondent has made the changes identified above and these changes do not create a sufficient distinction between Complainant’s TARGET mark and the disputed domain name. The addition of the term “24h” adds to the confusing similarity as it suggests that through the resolving webpage, an internet user may access Complainant’s retail stores online 24 hours every day. The Panel finds that Respondent’s domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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”). The Panel finds that Complainant has made a prima facie case.
Complainant claims that Respondent does not have rights or legitimate interests in the <target24h.com> domain name because Respondent is not commonly known by the disputed domain name and is not associated with Complainant or authorized to use Complainant’s TARGET mark. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). There is no evidence available in the WHOIS information to suggest that Respondent is known by <target24h.com> and no information suggests Complainant authorized Respondent to use the TARGET mark. Rather, the WHOIS information lists the registrant of the domain as “grhgfhgh hgfhgfh/treytrt.” The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant also argues that Respondent does not use the <target24h.com> domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), past panels have found no bona fide offering of goods or services, nor any legitimate noncommercial or fair use where the respondent uses the domain name to pass its self off as affiliated with the complainant. See Dream Horse Classifieds v. Mosley, FA 381256 (Forum Feb. 8, 2005) (finding the respondent’s attempt to pass itself off as the complainant by implementing a color scheme identical to the complainant’s was evidence that respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii)). The resolving webpage features Complainant’s mark, logo, and the same red-and-white color scheme as that featured on Complainant’s legitimate webpage, <target.com>.
Complainant argues that Respondent does not use the <target24h.com> domain name in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain in a phishing scheme. Phishing is the practice of attempting to gain another’s personal and/or financial information under false pretenses, and previous panels have found that using a confusingly similar domain name in a phishing scheme is not a bona fide offering of goods or services. See Capital One Fin. Corp. v. Howel, FA 289304 (Forum Aug. 11, 2004) (defining “phishing” as “a practice that is intended to defraud consumers into revealing personal and proprietary information”); see also Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Respondent’s resolving webpage features a log-in screen where internet users may select to enter their log-in information or create a new account. When users click the “no account, register now” link, they are prompted to enter personal information, including their phone number and “payment password.” The inclusion of the payment password indicates that Respondent is attempting to receive financial payments/information from visitors to its site. Furthermore, the confusing similarities between Complainant’s and Respondent’s webpages may lead some users to falsely believe they are accessing their existing account or creating a new account with Complainant. Respondent is potentially receiving users’ financial information under false pretenses, or in other words, phishing. The Panel finds that Respondent has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent has registered and uses the <target24h.com> domain in bad faith because it registered the domain to disrupt its business and to create bad faith attraction for commercial gain. Registration and use of a disputed domain name which is confusingly similar to a complainant’s domain name and mark and using that domain name to pass off as affiliated with the complainant in furtherance of a phishing scheme is evidence of bad faith per Policy ¶¶ 4(b)(iii) and (iv). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also FIL Limited v. Li jie, FA 1718900 (Forum Mar. 17, 2017) (finding the <fidelity.cn.com> domain name was registered and used in bad faith as it resolved to a website which mimicked the complainant’s login page in an attempt to gain Internet users’ personal and financial information). Respondent’s disputed domain name is not sufficiently distinct from Complainant’s TARGET mark and may be confusingly similar to Complainant’s webpage <target.com>. The similar resolving webpages of the domains further the confusing similarity, further disrupting Complainant’s business. Furthermore, when an internet user attempts to create a new account at Respondent’s resolving webpage, the user is prompted to enter a “payment password” which suggests that Respondent may be attempting to benefit commercially from the confusion. This is evidence that Respondent has registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant contends that Respondent registered the <target24h.com> domain in bad faith because Respondent failed to respond to Complainant’s cease and desist letter. Seiko Epson Corporation v. Ashish Sen, FA 1702054 (Forum Dec. 12, 2016) (finding that failing to respond to a cease-and-desist demand letter constitutes bad faith). Complainant sent a cease-and-desist letter on June 25, 2022, which Respondent failed to respond to. Complainant sent follow-up emails to Respondent on June 29, and July 5; Respondent did not respond to either. This is evidence that Respondent registered and uses the disputed domain in bad faith under Policy ¶ 4(a)(iii).
Complainant argues that Respondent has registered and uses the <target24h.com> domain in bad faith because it used a privacy service to shield its identity and provided false WHOIS information which can be evidence of bad faith. See Robert Half International Inc. v. robert arran, FA 1764367 (Forum Feb. 5. 2018) (“Respondent's use of a privacy registration service in an attempt to conceal his identity, though not itself dispositive, is a further indication of bad faith.”); see also Farouk Systems, Inc. v. Jack King / SLB, FA1505001618704 (Forum June 19, 2015) (finding bad faith registration and use pursuant to Policy ¶ 4(a)(iii) where the respondent had provided false contact information when registering the disputed domain name). The WHOIS information lists the registrant as “Redacted for Privacy/Privacy service provided by Withheld for Privacy ehf.” Later the Registrar identified the registrant as “grhgfhgh hgfhgfh/treytrt.” Further still, Complainant argues that Respondent’s contact information, including its name, appears to be a random arrangement of letters, rather than legitimate contact information. The Panel finds that Respondent registered and uses the disputed domain name in bad faith.
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <target24h.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
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