Target Brands, Inc. v. Kentech, Inc. c/o Domain Master
Claim Number: FA0605000697861
Complainant is Target Brands, Inc. (“Complainant”), represented by Deborah Shinbein, of Faegre & Benson, LLP, 1700 Lincoln St., Suite 3200, Denver, CO 80202-4004. Respondent is Kentech, Inc. c/o Domain Master (“Respondent”), 1st Floor Muya House Kenyatta, P.O. Box 4276-30100, Eldoret, Rift Valley 30100, KE, KENYA.
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <targetonline.org>, <targetltv.com>, <targetsportshop.com>, <targetscholarship.org> and <targetcouponcodes.org>, registered with Domain Contender, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on April 28, 2006; the National Arbitration Forum received a hard copy of the Complaint on May 1, 2006.
On May 5, 2006, Domain Contender, Llc confirmed by e-mail to the National Arbitration Forum that the <targetonline.org>, <targetltv.com>, <targetsportshop.com>, <targetscholarship.org> and <targetcouponcodes.org> domain names are registered with Domain Contender, Llc and that Respondent is the current registrant of the names. Domain Contender, Llc has verified that Respondent is bound by the Domain Contender, Llc registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On May 10, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 30, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@targetonline.org, postmaster@targetltv.com, postmaster@targetsportshop.com, postmaster@targetscholarship.org and postmaster@targetcouponcodes.org by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 5, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <targetonline.org>, <targetltv.com>, <targetsportshop.com>, <targetscholarship.org> and <targetcouponcodes.org> domain names are confusingly similar to Complainant’s TARGET mark.
2. Respondent does not have any rights or legitimate interests in the <targetonline.org>, <targetltv.com>, <targetsportshop.com>, <targetscholarship.org> and <targetcouponcodes.org> domain names.
3. Respondent registered and used the <targetonline.org>, <targetltv.com>, <targetsportshop.com>, <targetscholarship.org> and <targetcouponcodes.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Target Brands, Inc., is a wholly owned
subsidiary of Target Corporation and is responsible for protection of the
brands it owns and licenses to Target Corporation. Target Stores, a division of Target Corporation, operates over
1,400 retail department stores in 47 states and an electronic commerce
website. In connection with the retail
services and other commercial undertakings of its parent company, Complainant
holds numerous registrations with the United States Patent and Trademark Office
(“USPTO”), including the TARGET mark (Reg. No. 845,193 issued February 27
1968).
Respondent
registered the <targetonline.org> domain name on February
3, 2006,
the <targetltv.com> domain name on May 8, 2005, the <targetsportshop.com>
domain name on May 13, 2005, the <targetscholarship.org> domain name
on February 7, 2006 and the <targetcouponcodes.org> domain name
on February 4, 2006. Each of the
disputed domain names resolve to a website that contains a search engine with
sponsored links to stores, consumer retail products and other online shopping
sites that compete with Complainant’s business.
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant has established rights in the TARGET mark through registration of the mark with the USPTO. Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”); see also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”).
Complainant asserts that Respondent’s <targetonline.org>,
<targetltv.com>, <targetsportshop.com>,
<targetscholarship.org> and <targetcouponcodes.org> domain
names are confusingly similar to its TARGET mark. Respondent’s <targetonline.org>,
<targetsportshop.com>, <targetscholarship.org> and
<targetcouponcodes.org> domain names feature Complainant’s TARGET
mark in its entirety and contain various generic terms and either the “.com” or
“.org” top-level domain. Similarly,
Respondent’s <targetltv.com> domain name contains Complainant’s
TARGET mark in its entirety and adds the letters “ltv” and the top-level domain
“.com.” The Panel finds that the
addition of generic terms or letters to Complainant’s mark and the addition of
a top-level domain fails to differentiate the disputed domain names from
Complainant’s mark pursuant to Policy ¶ 4(a)(i). Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6,
2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s
registered mark is sufficient to establish identity [sic] or confusing
similarity for purposes of the Policy despite the addition of other words to
such marks”); see also Arthur
Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar.
23, 2001) (finding confusing similarity where the domain name in dispute
contains the identical mark of the complainant combined with a generic word or
term).
Complainant also argues in the body of the Complaint for the transfer of the <targetssportshop.com> domain name based on the addition of the letter “s” and generic terms “sport” and “shop” to Complainant’s mark. However, the <targetssportshop.com> domain name is not identified as a disputed domain name in this proceeding and shall not be considered.
The Panel finds that Policy ¶ 4(a)(i) has been satisfied for
the disputed domain names.
Complainant asserts that Respondent lacks rights and legitimate interests in the disputed domain names. Complainant must first make a prima facie case in support of its allegations, and then the burden shifts to Respondent to show it does have rights or legitimate interests under Policy ¶ 4(a)(ii). G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Respondent’s failure to respond to the Complaint raises a
presumption that Respondent lacks rights and legitimate interests in the
disputed domain names. See Parfums Christian Dior v. QTR Corp.,
D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the
respondent has failed to invoke any circumstance which could demonstrate any
rights or legitimate interests in the domain name); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's
failure to respond not only results in its failure to meet its burden, but also
will be viewed as evidence itself that Respondent lacks rights and legitimate
interests in the disputed domain name.”).
However, the Panel chooses to examine the record to determine if
Respondent has rights or legitimate interests under Policy ¶ 4(c).
Respondent has registered the
disputed domain names under the name “Kentec, Inc.” with the administrative
contact as “Domain Master.” Furthermore,
there is no other evidence in the record to suggest that Respondent is commonly
known by any of the disputed domain names.
Accordingly, Respondent has failed to prove that it has rights or
legitimate interests to any of the disputed domain names pursuant to Policy ¶
4(c)(ii). See Ian Schrager Hotels,
L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected); see also Tercent
Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing
in Respondent’s WHOIS information implies that Respondent is ‘commonly known
by’ the disputed domain name” as one factor in determining that Policy ¶
4(c)(ii) does not apply).
Moreover, Respondent’s confusingly
similar domain names resolve to a website that contains a search engine
with sponsored links to stores, consumer retail products and other online
shopping sites that compete with Complainant’s business. The Panel concludes that use of a
confusingly similar domain name to divert Internet users to a website that
contains a search engine that consists of sponsorsed links to competing
websites does not amount to a bona fide offering of goods or services
under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under to
Policy ¶ 4(c)(iii). Pioneer Hi-Bred
Int’l Inc. v. Chan, FA 154119 (Nat. Arb. Forum May 12, 2003) (finding that
the respondent did not have rights or legitimate interests in a domain name
that used the complainant’s mark and redirected Internet users to website that
pays domain name registrants for referring those users to its search engine and
pop-up advertisements).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the confusingly similar domain names to
redirect Internet users to a website that contains a search
engine with sponsored links to stores, consumer retail products and other
online shopping sites that compete with Complainant’s business. The Panel finds that such registration and
use of the confusingly similar domain names evidences bad faith under Policy ¶
4(b)(iii). See S. Exposure v. S. Exposure, Inc., FA 94864 (Nat. Arb. Forum July 18, 2000) (finding
that the respondent registered the domain name in question to disrupt the
business of the complainant, a competitor of the respondent); see also Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent
registered a domain name confusingly similar to Complainant's mark to divert
Internet users to a competitor's website. It is a reasonable inference that
Respondent's purpose of registration and use was to either disrupt or create
confusion for Complainant's business in bad faith pursuant to Policy ¶¶
4(b)(iii) [and] (iv).”).
Furthermore, Complainant presents
an uncontested assertion that Respondent receives commercial gain from
redirection of Internet users with confusingly similar domain names to a
website that contains sponsored links to third-party websites that compete with
Complainant. Additionally, Complainant asserts that the disputed domain names
that contain Complainant’s mark in its entirety will cause confusion as to
Complainant’s sponsorship of or affiliation with the resulting websites. The Panel therefore finds that Respondent’s
registration and use of the confusingly similar domain names for commercial
gain evidences bad faith under Policy ¶ 4(b)(iv). See Philip Morris Inc. v. r9.net, D2003-0004
(WIPO Feb. 28, 2003) (finding that the respondent’s registration of an
infringing domain name to redirect Internet users to banner advertisements
constituted bad faith use of the domain name); see also Kmart v. Khan,
FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent
profits from its diversionary use of the complainant's mark when the domain
name resolves to commercial websites and the respondent fails to contest the
complaint, it may be concluded that the respondent is using the domain name in
bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <targetonline.org>, <targetltv.com>, <targetsportshop.com>, <targetscholarship.org> and <targetcouponcodes.org> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: June 16, 2006
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum