DECISION

 

Target Brands, Inc. v. Hui Liu

Claim Number: FA2506002159578

 

PARTIES

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

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <anewdaysale.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 June 6, 2025; Forum received payment on June 6, 2025.

 

On June 9, 2025, Name.com, Inc. confirmed by e-mail to Forum that the <anewdaysale.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 June 10, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 30, 2025 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@anewdaysale.com. Also on June 10, 2025, 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 July 1, 2025, 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 as follows:

 

Complainant Target Brands Inc is the owner of the A NEW DAY trademarks through numerous trademark registrations globally. In 2017, several years prior to the creation of the at-issue domain name, Complainant commenced use of the mark in connection with an in-store and online through Complainant's official website destination for the exclusive sale of A NEW DAY women's apparel and accessories.

 

Respondent's <anewdaysale.com> domain name is identical or confusingly similar to a mark in which Complainant has rights. Respondent initially attracts searchers to its <anewdaysale.com> website by using the A NEW DAY mark in its entirety within the domain name, merely adding the generic word "sale" at the end. This minor change makes those who see the <anewdaysale.com> domain name think that it is related to Complainant and Complainant's online retail business, and that it is an online outlet for products sold under Complainant's A NEW DAY trademark 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 has no 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). Respondent's website to which the at-issue domain name resolves offers for sale the kind of consumer products offered by Complainant under the mark. This use and impersonation divert visitors - likely Complainant's customers and potential customers - to Respondent's commercial website, which is not, in any way, associated with, licensed, or approved by Complainant. Respondent is not commonly known by the at-issue domain name or the term A NEW DAY, nor does Respondent operate a legitimate business or other organization under the Complainant's mark and it does not own any trademark or service mark rights in A NEW DAY. Respondent is not making a legitimate noncommercial or fair use of the at-issue domain name without intent for commercial gain, and so its actions do not fall within Policy ¶ 4(c)(iii). Respondent uses a domain name that is confusingly similar to Complainant's mark, and uses it to confuse Complainant's customers into believing that the resulting website is owned by, or affiliated with Complainant, when this is not the case. Respondent has not been in any way authorized by Complainant, nor is the domain name and its associated website endorsed or sponsored by Complainant. Such use cannot be considered fair and it also does not fit into any accepted category of fair use such as news reporting, commentary, political speech, education, nominative use, etc. Finally, Respondent's use has tarnished and diluted Complainant's trademark. As a result of its use of <anewdaysale.com>, Respondent has harmed the brand reputation of the mark and diminished the public's capacity to associate the mark with the quality products and services offered by Complainant.

 

The at-issue domain name was registered and is being used in bad faith. Respondent intentionally attempts to attract, for commercial gain, internet users, by creating a likelihood of confusion with Complainant's mark as to source, sponsorship, affiliation, or endorsement of activities carried out under its domain names. Respondent intentionally uses Complainant's mark without consent from Complainant. Respondent was on actual notice of Complainant's rights in the mark as a result of Complainant's extensive use of the mark which predates the date on which Respondent acquired the domain name. Respondent's website incorporates images and texts directly copied from Complainant's official website. The About Us page on the Disputed Domain Name further displays the identical text as used on several other About Us pages on fake webshops targeting registered trademarks as well as a similar email structure appearing in WHOIS, indicating that Respondent is engaged in a pattern of conduct and eliminating any doubt that the domain name was registered and is used in bad faith. Respondent's creation of a website that impersonates Complainant and its A NEW DAY Mark and products alone constitutes bad faith as it disrupts Complainant's business and seeks to capitalize on confusion with the A NEW DAY mark. Finally, Complainant's representative sent cease-and-desist letters to the Respondent. However, no response has been received from the Respondent. Such non-responsiveness has also been held to support a finding of bad faith registration and use.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the A NEW 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 A NEW DAY trademark.

 

The at-issue domain name addresses a website that mimics the look and feel of Complainant's genuine website and is used to impersonate Complainant to offer products similar or identical to products offered by Complainant.

 

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 A NEW 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 <anewdaysale.com> domain name contains Complainant's A NEW DAY trademark with its domain name impermissible spaces removed, followed by the suggestive term "sale," and with all 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 A NEW 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 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.")

 

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). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant's prima facie showing acts conclusively.

 

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 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 <anewdaysale.com> indicates that "Hui Liu" is the domain name's registrant and there is nothing in the record that tends to prove that Respondent is known by the <anewdaysale.com> domain name. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(iii). 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 uses the confusingly similar <anewdaysale.com> domain name to address a website that purports to sell the kind of consumer products offered by Complainant under its A NEW DAY trademark. The website, which makes liberal use of Complainant's A NEW DAY trademark, is fashioned to deceive site visitors into falsely believing that the domain name and referenced website are affiliated with Complainant. Notably, the website also includes text found on other bogus websites that were involved in prior UDRP proceedings and whose domain names were ordered transferred. Respondent's use of <anewdaysale.com> to impersonate Complainant in this manner is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶4(c)(iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that "use of a domain to sell products and/or services that compete directly with a complainant's business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)."); see also Glaxo Group Ltd. v. WWW Zban, FA 203164 (Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting internet users to a competing commercial site); see also Am. Int'l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant's mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).

 

Given the forgoing, Respondent lacks rights and lacks legitimate interests in respect of <anewdaysale.com>.

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, Respondent acted in bad faith.

 

Respondent's at-issue domain name addresses Respondent's <anewdaysale.com> website. Respondent uses its website so that Respondent may pass itself off as Complainant and deceive internet users into falsely believing that the domain name and its copycat website are sponsored by Complainant. Respondent's use of the confusingly similar domain name is disruptive to Complainant's business and designed to attract internet users so that Respondent may capitalize on the confusion it created between its <anewdaysale.com> domain name and Complainant's A NEW DAY trademark. Respondent's use of <anewdaysale.com> thus demonstrates Respondent's bad faith registration and use under Policy ¶ 4(b)(iii) and 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, G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract internet users to its commercial website to sell the complainant's products ); see also, Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) ("Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant."). Even given that Respondent is offering products without the intent to ever deliver such products, Respondent's bad faith is nevertheless demonstrated. See E*Trade Financial Holdings, LLC v. Alex Drown, FA2209002013318 (Forum October 21, 2022) (finding that a website offering fake financial services was evidence of bad faith registration and use of the at-issue domain name).

 

Moreover, Respondent had actual knowledge of Complainant's rights in the A NEW DAY mark when it registered <anewdaysale.com> as a domain name. Respondent's actual prior knowledge of Complainant's trademark is evident from the notoriety of Complainant's mark and from Respondent's use of <anewdaysale.com> to pose as Complainant and purport to sell products like those offered by Complainant. Respondent's registration and use of a confusingly similar domain name with knowledge of Complainant's rights in A NEW DAY further shows Respondent's bad faith registration and use of <anewdaysale.com> pursuant to Policy ¶ 4(a)(iii). 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); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION 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 <anewdaysale.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Paul M. DeCicco, Panelist

Dated: July 1, 2025