DECISION

 

Target Brands, Inc. v. lai jing

Claim Number: FA2411002124804

PARTIES

Complainant is Target Brands, Inc. ("Complainant"), represented by Jeanette Eriksson of FairWinds Partners LLC, District of Columbia, USA. Respondent is lai jing ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <favorite-day.com>, registered with Name.com, Inc.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 13, 2024; Forum received payment on November 13, 2024.

 

On November 13, 2024, Name.com, Inc. confirmed by e-mail to Forum that the <favorite-day.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 November 14, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 4, 2024 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@favorite-day.com. Also on November 14, 2024, 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 December 5, 2024, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends in part as follows:

 

Complainant Target Brands Inc is the owner of the FAVORITE DAY trademarks through numerous trademark registrations globally. In 2021, several years prior to the creation of the at-issue domain name, Complainant commenced use of the FAVORITE DAY in connection with an in-store and online (through Complainant's official website offering of FAVORITE DAY high-quality sweet and savory treats, ranging from bakery and trail mixes to premium ice cream and more.

 

Respondent's <favorite-day.com> domain name is confusingly similar to Complainant's registered FAVORITE DAY trademark. Respondent's domain name contains a version of Complainant's trademark that has a hyphen between the words. This minor change nevertheless makes those who see the <favorite-day.com> domain name think that it is related to Complainant and Complainant's product offerings. The addition of a gTLD such as ".com" does nothing to alleviate confusion between the domain name and mark because it is merely a technical function. .

 

Respondent lacks rights and legitimate interests in respect of the at-issue domain name. Respondent's actions are not a bona fide offering of goods or services under Policy ¶ 4(c)(i). Complainant has not licensed, authorized, or permitted Respondent to register the domain name incorporating Complainant's FAVORITE DAY trademark, or to use the FAVORITE DAY trademark in general. Respondent uses the Disputed Domain name for a fake blog of the type which has commonly come to be known as a spam blog or a "splog". This is described in the Wikipedia entry on the topic as "a blog which the author uses to promote affiliated websites, to increase the search engine rankings of associated sites or to simply sell links/ads." Knowingly copying a registered trademark for the purpose of posting a splog to harvest user information or to divert traffic away from a complainant's legitimate website through impersonation and passing off has been held not to be a bona fide use of such mark. The at-issue domain name resolves to a webpage claiming to be the official FAVORITE DAY website, redirecting internet users to a website that contains numerous monetized ads and sponsored links to products and services competing with those sold by Complainant under the FAVORITE DAY mark, displaying "leave a reply" and "subscribe and get a discount" fields presumably with the sole purpose to harvest personal information as part of a phishing attempt or perhaps for the sale of such personal information to a third party. Respondent's use has tarnished and diluted Complainant's mark.

 

Respondent registered and used the at-issue domain name in bad faith. Respondent intentionally uses Complainant's mark without consent from Complainant. Respondent was on actual notice of Complainant's rights in the FAVORITE DAY mark as a result of Complainant's use of the mark which predates the date on which Respondent acquired the at-issue domain name. Respondent's creation of a website that impersonates Complainant and its FAVORITE DAY mark alone constitutes bad faith as it disrupts Complainant's business and seeks to capitalize on confusion with the FAVORITE DAY mark. Respondent's unauthorized use of a confusingly similar domain name, the unauthorized use of Complainant's full trademark and logos numerous times across the corresponding website together with blatant impersonation and redirection of internet users, the lack of any disclaimer, and use of "Leave a reply" and "subscribe and get a discount" forms to harvest user information for spam or phishing purposes (either through selling or otherwise exploiting user information or promoting certain other websites) is indicative of Respondent's intent to confuse users for its own commercial gain and to disrupt Complainant's business by drawing users to the at-issue domain name and its associated site. Respondent is seeking to harvest information, likely with the goal of extracting funds from users and engaging in phishing, identify theft, and other cybercrimes. Respondent appears to, either on its own through numerous aliases, or in partnership with another, operate a scheme where trademarks are targeted in a similar way and used for websites that are near identical in structure and feel. Respondent's involvement in registration and ownership of other obviously infringing domain names is highly relevant to the consideration of bad faith in the present case since it shows that Respondent has engaged in a pattern of conduct designed to infringe upon the trademarks of others and is well-familiar with the practice of leveraging the fame of trademarks to earn revenue in fraudulent ways. Complainant's representative sent cease-and-desist letters to the Respondent, both through the contact form in WHOIS and via email to the email as listed on the website of the at-issue domain name support@favorite-day.com – which was undeliverable, further illustrating Respondent's bad faith operations.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the FAVORITE DAY 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 FAVORITE DAY trademark.

 

The at-issue domain name addresses a website that mimics the look and feel of Complainant's genuine website and is used as a spam blog.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.

 

Complainant's USPTO registrations for FAVORITE DAY as well as its other trademark registrations for such mark worldwide are each sufficient to demonstrate Complainant's rights in a mark under Policy ¶ 4(a)(i). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant's registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)).

 

Respondent's <favorite-day.com> domain name contains a recognizable variant of Complainant's FAVORITE DAY trademark where the mark's domain name-impermissible space is replaced with a hyphen, and all is followed by the ".com" top-level. The differences between Respondent's domain name and Complainant's trademark are insufficient to distinguish such domain name from Complainant's FAVORITE DAY mark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent's at-issue domain name is confusingly similar to a trademark in which Complainant has rights. See Microtech Knives, Inc. v. shenzhen… et al, FA 2061325 (Forum Oct. 6, 2023) (finding <micro-tech.store> to be confusingly similar to complainant's MICROTECH trademark); see also, Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) ("A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.").

 

Rights or Legitimate Interests

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 is not authorized to use Complainant's trademarks 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 Charter Communications Holding Company, LLC v. Taha Shaikh / Tskdesigners, FA 1814475 (Forum Nov. 25, 2018) (finding no rights or legitimate interests in <spectrumfeature.com> because complainant never gave respondent permission to use the mark in any manner and Panels may use these assertions as evidence that no rights or legitimate interests exist in a disputed domain name.").

 

The WHOIS information for the at-issue domain name identifies "lai jing" as the domain name's registrant and the record before the Panel contains no evidence that tends to prove that the domain name's registrant is commonly known by the at-issue domain name. The Panel therefore concludes that Respondent is not commonly known by <favorite-day.com> 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 <favorite-day.com> domain name addresses or redirects to a fake blog commonly known as a spam blog. The spam blog is used to promote affiliated websites purportedly in an attempt to improve the associates' search engine ranking or to sell links and or advertising. The website mimics the look and feel Complainant's genuine website. Respondent's <favorite-day.com> website also contains online forms that seek to harvest the names and email addresses of users who input such information with the expectation of reaching Complainant as part of a phishing attempt, or for the sale of such personal information to a third party. Thus, Respondent failed to use the domain name to promote a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) ("Respondent uses the [disputed] domain name to divert Internet users to Respondent's website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)."); 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 fid  offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).").

 

Given the forgoing, Respondent lacks rights and lacks legitimate interests in <favorite-day.com>.

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, there is sufficient evidence to allow the Panel to conclude that Respondent acted in bad faith pursuant to the Policy.

 

As mentioned above, Respondent uses its confusingly similar domain name to direct internet traffic to Respondent's <favorite-day.com> website. There, Respondent displays Complainant's FAVORITE DAY mark and impersonates Complainant's genuine website. The website appears to be a spam blog or "splog."  Such sites are used to attempt to increase the search engine ranking of associated sites by causing visitors to navigate through circular links and/or to profit from the sale of links or advertising. Respondent's use of <favorite-day.com> and its associated website is thus disruptive to Complainant's business and capitalizes on the confusion Respondent creates between Complainant's trademark and Respondent's domain name. Respondent thus registered and uses the at-issue domain name in bad faith pursuant Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also, Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) ("The Panel agrees that Respondent's use of the website to display products similar to Complainant's, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).").

 

Moreover, Respondent had actual knowledge of Complainant's rights in the FAVORITE DAY mark before it registered <favorite-day.com> as a domain name. Respondent's prior knowledge is evident from the notoriety of Complainant and Complainant's FAVORITE DAY trademark, and from Respondent's many references to Complainant's FAVORITE DAY trademark and its mimicking of Complainant's website on Respondent's <favorite-day.com> website. Respondent's registration and use of a confusingly similar domain name with knowledge of Complainant's trademark rights in FAVORITE DAY further demonstrates Respondent's bad faith pursuant to the Policy. See Lemon Inc. v. Sumer Singh, FA 2110519 (Forum September 5, 2024 ("registration of a disputed domain name with actual knowledge of another's trademark rights is sufficient to establish bad faith, and can be shown by the notoriety of the mark and the use the Respondent makes of the disputed domain name"); 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).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <favorite-day.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: December 5, 2024