Target Brands, Inc. v. qqmm / qqmm ZZOO
Claim Number: FA1910001865974
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy of FairWinds Partners, LLC, District of Columbia, USA. Respondent is qqmm / qqmm ZZOO (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <targetbalancecheck.com>, registered with Hostinger, UAB.
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.
Eugene I. Low as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 9, 2019; the Forum received payment on October 9, 2019.
On October 11, 2019, Hostinger, UAB confirmed by e-mail to the Forum that the <targetbalancecheck.com> domain name is registered with Hostinger, UAB and that Respondent is the current registrant of the name. Hostinger, UAB has verified that Respondent is bound by the Hostinger, UAB 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 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 4, 2019 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@targetbalancecheck.com. Also on October 15, 2019, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On November 6, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Eugene I. Low as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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 operates in the retail and online department store industries. Complainant has rights in the TARGET mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 818,410 registered Mar. 5, 1968). Respondent’s <targetbalancecheck.com> domain name is identical or confusingly similar to Complainant’s TARGET mark because it wholly incorporates Complainant’s TARGET mark, and merely adds the generic or descriptive phrase “balance check” as well as the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <targetbalancecheck.com> domain name. Respondent is not authorized or licensed to use Complainant’s TARGET mark and there is no evidence to suggest that the Respondent listed in the WHOIS record is commonly known by the disputed domain name.
Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain to pass off as Complainant in furtherance of a gift card scam.
Respondent registered and uses the <targetbalancecheck.com> domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name where Respondent attempts to pass off as Complainant in furtherance of a gift card scam. See Compl. Ex. F-2. Respondent also registered the disputed domain name using a privacy service. Finally, Respondent had actual knowledge of Complainant’s TARGET mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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”).
The Panel finds in favor of Complainant.
Complainant asserts rights in the TARGET mark based upon registration with the USPTO. Registration of a mark with the USPTO is generally sufficient to establish rights in the mark pursuant to Policy ¶ 4(a)(i). Here, Complainant provides registrations for its TARGET mark (e.g., Reg. No. 818,410 registered Mar. 5, 1968). Complainant has also produced evidence of use of its mark. The Panel finds that Complainant has established rights in the TARGET mark per Policy ¶ 4(a)(i) through registration and through use.
The Panel accepts Complainant’s submission that Respondent’s <targetbalancecheck.com> domain name is identical or confusingly similar to Complainant’s TARGET mark because it wholly incorporates Complainant’s TARGET mark, and merely adds the generic or descriptive phrase “balance check” as well as the “.com” gTLD. The Panel has also taken into account Complainant’s evidence which suggests that the disputed domain name is used for a gift card scheme. The Panel considers that this adds to the confusing similarities.
The Panel finds in favor of Complainant.
The Panel is satisfied that Complainant has made out a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Complainant confirms that Respondent is not authorized by Complainant to use the TARGET mark. There is also no evidence to suggest Respondent is commonly known by the disputed domain name. Complainant provides WHOIS information indicating that Respondent is known as “QQMM / QQMM ZZOO” and no information of the record indicates that Respondent was commonly known by the disputed domain name. The Panel has also taken into account Complainant’s submission that Respondent uses the disputed domain to pass off as Complainant in furtherance of a gift-card-based phishing scam.
Respondent has not made any submission to counter these arguments.
Accordingly, the Panel finds that Respondent lacks rights or legitimate interests in respect of the disputed domain name under Policy ¶ 4(a)(ii).
The Panel finds in favor of Complainant.
Complainant argues that Respondent registered and uses the <targetbalancecheck.com> domain name in bad faith because Respondent attempts to attract, for commercial gain, users to the disputed domain name where Respondent attempts to pass off as Complainant in furtherance of a gift card phishing scheme. Complainant has produced evidence which suggests that the disputed domain name resolves to a website purporting to offer a balance verification service for Complainant’s gift cards, but actually fraudulently drains the value from the gift card and absconds with the owner’s personal information.
Furthermore, the Panel accepts Complainant’s contention that Respondent had actual and/or constructive knowledge of Complainant’s rights in the TARGET mark as the result of Complainant’s extensive use of the mark predating the date on which respondent registered the <targetbalancecheck.com> domain name and Respondent’s use of Complainant’s mark on the resolving webpage.
In the absence of any contrary evidence or submissions by Respondent, the Panel accepts Complainant’s submission that the registration and use of the disputed domain name is in bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <targetbalancecheck.com> domain name be TRANSFERRED from Respondent to Complainant.
Eugene I. Low, Panelist
Dated: November 11, 2019
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