Target Brands, Inc. v. furqan
Claim Number: FA2210002017216
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy, US. Respondent is furqan (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <targetcomcheckbalance.com>, registered with Google 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 Forum electronically on October 24, 2022; Forum received payment on October 24, 2022.
On October 24, 2022, Google LLC confirmed by e-mail to Forum that the <targetcomcheckbalance.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 October 25, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 14, 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@targetcomcheckbalance.com. Also on October 25, 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, Forum transmitted to the parties a Notification of Respondent Default.
On November 16, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 contends as follows:
Complainant, Target Brands, Inc. is in the retail business that operates under the famous TARGET trademark.
Complainant‘s rights in TARGET are based upon its registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <targetcomcheckbalance.com> is confusingly similar to Complainant’s TARGET trademark because it incorporates the mark in its entirety and adds the terms “COM”, “CHECK”, and “BALANCE”, and the generic top-level domain name (“gTLD”) “.com”.
Respondent does not have rights or legitimate interests in the <targetcomcheckbalance.com> domain name. Respondent is not licensed or authorized to use Complainant’s TARGET mark and is not commonly known by the at-issue domain name. Respondent also does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent attempts to pass off as affiliated with Complainant by mimicking Complainant’s website and featuring a link redirecting internet users to Complainant’s own website.
Respondent registered and uses the <targetcomcheckbalance.com> domain name in bad faith. Respondent had actual notice of Complainant’s rights in the TARGET mark prior to registration. Respondent failed to respond to its cease-and-desist letter. Respondent used a privacy shield to register the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the TARGET trademark.
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 name after Complainant acquired rights in the TARGET trademark.
Respondent uses the at-issue domain name to pass itself off as Complainant by mimicking Complainant’s website and redirecting internet users to Complainant’s own website.
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’s USPTO trademark registration for TARGET is sufficient to demonstrate Complainant’s rights in a mark for the purposes of Policy ¶ 4 (a)(i). 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”).”).
The at-issue domain name contains Complainant’s TARGET trademark followed by the letters or term or terms “com check balance” and with all followed by the “.com” top-level domain name. The differences between <targetcomcheckbalance.com> and Complainant’s TARGET trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <targetcomcheckbalance.com> domain name is confusingly similar to Complainant’s TARGET trademark. 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, Countrywide Fin. Corp. v. Johnson & Sons Sys., FA 1073019 (Forum Oct. 24, 2007) (holding that the addition of the generic top-level domain (“gTLD”) “.com” was irrelevant).
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 the 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). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
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. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for the at-issue domain name ultimately identifies the domain name’s registrant as “furqan” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by either the <targetcomcheckbalance.com> domain name or by TARGET. The Panel therefore concludes that Respondent is not commonly known by the <targetcomcheckbalance.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent uses the TARGET domain name to impersonate Complainant by addressing a website mimicking Complainant official website. The copied website also contains a link redirecting internet traffic to Complainant’s website. Respondent’s use of the <targetcomcheckbalance.com> domain name in this manner fails to show either a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii). See Barnesandnoble.com LLC v. Your One Stop Web Shop, FA 670171 (Forum May 3, 2006) (finding that the respondent’s use of the disputed domain names to divert Internet users attempting to reach the complainant’s website and in breach of the complainant’s affiliate program is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Dell Inc. v. Devesh Tyagi, FA 1785301 (Forum June 2, 2018) (“Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
As discussed below without being exhaustive, bad faith circumstances are present which permit the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above regarding rights and legitimate interests, Respondent uses <targetcomcheckbalance.com> to pass itself off as COMPLAINANT by addressing a website mimicking Complainant’s official website. Respondent’s website is replete with Complainant’s trademark and logo and contains a copy of Complainant’s webpage used for checking gift card balances. Respondent’s website also features a link to Complainant’s www.target.com website. Respondent’s use of the domain name is disruptive to Complainant’s business and exploits the confusion it created between the at-issue domain name and the TARGET trademark thereby demonstrating Respondent’s bad faith registration and use of <targetcomcheckbalance.com> per Policy ¶¶ (b)(iii) and/or (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, Verizon Trademark Servs. LLC v. Boyiko, FA 1382148 (Forum May 12, 2011) (“The Panel finds that Respondent’s registration and use of the confusingly similar disputed domain name, even where it resolves to Complainant’s own site, is still registration and use in bad faith pursuant to Policy ¶ 4(a)(iii).”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the TARGET mark when it registered <targetcomcheckbalance.com> as a domain name. Respondent’s actual knowledge is evident from Respondent’s use of Complainant’s entire famous trademark in the at-issue <targetcomcheckbalance.com> domain name to pass itself off as Complainant as discussed elsewhere herein. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Target Brands, Inc. v. Christian Grey, FA 1928766 (Forum Feb. 12, 2021) (concluding where the TARGET mark and references to Complainant’s gift cards formed the at-issue domain name that “it is implausible that the registrant was unaware of Complainant when the disputed domain name was registered and furthermore it is improbable that the disputed domain name was registered for any reason other than to misdirect and confuse Internet users.”); see also, Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (holding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation); see also, 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").
Lastly, it is difficult if not impossible to conceive of a good faith use of the <targetcomcheckbalance.com> domain name given the circumstances surrounding the instant dispute.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <targetcomcheckbalance.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 16, 2022
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