Target Brands, Inc. v. baoqiang baoqiang
Claim Number: FA2212002024824
Complainant is Target Brands, Inc. (“Complainant”), represented by FairWinds Partners LLC, United States of America (“United States”). Respondent is baoqiang baoqiang (“Respondent”), Hong Kong, China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <target.wiki> (the “disputed domain name”), registered with Dynadot, LLC (the “Registrar”).
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.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to Forum electronically on December 20, 2022; Forum received payment on December 20, 2022.
On December 20, 2022, the Registrar confirmed by e-mail to Forum that the <target.wiki> disputed domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. The Registrar has verified that Respondent is bound by the Dynadot, 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 December 21, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 10, 2023 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@target.wiki. Also on December 21, 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 January 11, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Lynda M. Braun 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Created in Minneapolis, Minnesota in 1962 as a division of the former Dayton Hudson Corporation, Complainant is now one of the most famous brands in the field of retail department stores and grocery stores. Complainant currently serves customers through approximately 1,750 stores in the United States and maintains offices in a number of other jurisdictions worldwide.
Complainant asserts rights in the TARGET trademark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Trademark Registration No. 818,410, registered on November 8, 1966). In addition, Complainant asserts rights in the TARGET trademark in various jurisdictions worldwide. The aforementioned trademarks will hereinafter collectively be referred to as the “TARGET Mark”.
Complainant contends that the disputed domain name is confusingly similar to Complainant’s TARGET trademark because it incorporates the mark in its entirety and adds the generic Top-Level Domain name (“gTLD”) “.wiki”. Complainant further claims that Respondent does not have rights or legitimate interests in the disputed domain name, and that Respondent attempted to pass off as Complainant in furtherance of a phishing scheme. The disputed domain name’s resolving website requires Complainant to illegally lure Complainant’s customers into disclosing their login credentials for Complainant’s legitimate website. Finally, Complainant contends that Respondent registered and uses the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant has registered trademark rights in the TARGET Mark as described above. Registration with multiple trademark offices is sufficient to establish rights in a mark pursuant to Policy ¶4(a)(i). The Panel also finds that the disputed domain name is confusingly similar to the Complainant’s TARGET Mark, that Respondent has no rights or legitimate interests in respect of the disputed domain name, and that the disputed domain name was registered and is 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 disputed domain name should be cancelled or transferred:
(1) the disputed 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 disputed domain name; and
(3) the disputed 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 through its registration with the USPTO (e.g., Trademark Registration No. 818,410, registered on November 8, 1966). In addition, Complainant asserts rights in the TARGET trademark in various jurisdictions worldwide. The aforementioned trademarks will hereinafter collectively be referred to as the “TARGET Mark”.
Registration of a mark with multiple trademark agencies is sufficient to establish rights in a mark pursuant to Policy ¶ 4(a)(i). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (“Complainant has rights in the GMAIL mark based upon its registration of the mark with numerous trademark agencies around the world.”).
The Panel also finds that Respondent’s disputed domain name is confusingly similar to the TARGET Mark under Policy ¶ 4(a)(i), as the disputed domain name incorporates the trademark in its entirety, only differing by the addition of the “wiki” gTLD. The addition of a gTLD to an otherwise recognizable mark may not sufficiently distinguish the disputed domain name from the TARGET Mark under Policy ¶ 4(a)(i). Previous Panels have held that such changes do not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See KW KONA INVESTORS, LLC v. Privacy.co.com / Privacy.co.com, Inc Privacy ID# 923815, FA 1784456 (Forum June 11, 2018) (the addition of a gTLD is irrelevant in determining whether the disputed domain name is confusingly similar to a trademark).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show that it has rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). Here, the Panel holds that Complainant has made out a prima facie case.
The Panel further finds that Respondent has no rights or legitimate interests in the disputed domain name as Respondent has not provided evidence nor proven that it is commonly known by the disputed domain name or any similar name, nor has Complainant authorized Respondent to use the TARGET Mark. Moreover, Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.
Specifically, Respondent has used the disputed domain name to divert Internet users to a confusingly similar website that was clearly designed to capitalize on confusion between the respective parties’ domain names and trademarks.
Respondent’s resolving website has been identified as “malicious” and thus, it is not a stretch of the imagination to infer that, when credentials are entered in this form by one of Complainant’s customers, the Respondent collects them to be used for hacking, phishing, and/or other cybercrimes against the individual victims whose accounts have been compromised, and perhaps against Complainant as well. This phishing scheme is, undoubtedly, not a bona fide offering of goods or services.
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
The Panel finds that, based on the record, Complainant has demonstrated the existence of Respondent’s bad faith registration and use pursuant to paragraph 4(b) of the Policy.
First, the use of a disputed domain name to intentionally attempt to attract Internet users to a respondent’s website or online location by creating a likelihood of confusion or a false association with a complainant’s mark as to the source, sponsorship, affiliation or endorsement of the registrant’s website or online location demonstrates registration and use in bad faith. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006).
Second, Respondent attracted Internet users for commercial gain by using the disputed domain name to pass itself off as Complainant, displaying the TARGET Mark, and disrupting Complainant’s business, all indications of bad faith. Passing off as Complainant to deceive unsuspecting consumers for commercial gain demonstrates bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 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.”).
Third, Respondent was on actual notice of Complainant’s rights in its globally famous TARGET Mark as a result of Complainant’s extensive use of the trademark which long predated the date on which Respondent registered the <target.wiki> disputed domain name on December 7, 2022.
Finally, Respondent used the disputed domain name for a phishing scam seeking to illegally lure Complainant’s customers into disclosing their login credentials. This sort of activity has categorically been held to demonstrate bad faith registration and use. Here, bad faith was found where the disputed domain name was used to impersonate Complainant while promoting and operating a money-making scam. The disputed domain name’s resolving website displayed Complainant’s red-and-white graphic logo. The page automatically redirected to a page displaying a ‘sign up’ form in which users were asked to input their mobile phone number and create a password. In addition, the resolving website had been identified as “malicious” through which it attempted to collect the login credentials of Complainant’s customers.
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by 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 <target.wiki> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: January 16, 2023
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