The TJX Companies, Inc. v. cvbvcn
Claim Number: FA2208002007862
Complainant is The TJX Companies, Inc. (“Complainant”), represented by Steven M. Levy of FairWinds Partners LLC, District of Columbia, USA. Respondent is cvbvcn (“Respondent”), Alabama, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tjx66.com>, registered with NameSilo, 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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 10, 2022; the Forum received payment on August 10, 2022.
On August 10, 2022, NameSilo, LLC confirmed by e-mail to the Forum that the <tjx66.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 August 12, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 1, 2022 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@tjx66.com. Also on August 12, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On September 7, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho-Hyun Nahm, Esq. 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
i) Complainant commenced use of the TJX mark as the corporate parent company of what has become a collection of leading off-price apparel and home fashions retailers. As a result of Complainant’s long and extensive use of the TJX mark and efforts to promote the mark, it has become very well-known and widely recognized by consumers. Complainant has rights in the TJX mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,117,444 registered December 2, 1997). The disputed domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the TJX mark in its entirety and adds the number “66” and adds the “.com” generic top-level domain (“gTLD”).
ii) Respondent has no legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the TJX mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name is used to pass off as Complainant
iii) Respondent registered and uses the disputed domain name in bad faith., Respondent registered the disputed domain name in order to disrupt Complainant’s business and divert customers for commercial gain. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the TJX mark.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The disputed domain name was registered on March 24, 2022.
2. Complainant has established rights in the TJX mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,117,444 registered December 2, 1997).
3. The disputed domain name’s resolving webpage shows that the disputed domain name was used to impersonate Complainant while promoting and operating a money-making scam. It displays Complainant’s TJX red-and-white graphic logo. The page automatically redirects to a page displaying a “Sign up” form in which users are asked to input their mobile phone number and create a password.
4. Complainant has received a number of queries from individuals who are confused as to the source and legitimacy of the disputed domain name’s resolving website.
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”).
Complainant asserts rights in the TJX mark based upon the registration with the USPTO ((e.g., Reg. No. 2,117,444 registered December 2, 1997). Registration of a mark with the USPTO is a valid showing of rights in a mark. Since Complainant provides evidence of registration of the TJX mark with the USPTO, the Panel finds that Complainant has established rights in the mark under Policy 4(a)(i).
Complainant argues the disputed domain name <tjx66.com> is identical or confusingly similar to Complainant’s TJX mark as it contains the TJX mark in its entirety and merely adds the number “66” and the “.com” gTLD. The addition of a generic or descriptive phrase and gTLD fails to sufficiently distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant contends Respondent lacks rights or legitimate interests in the disputed domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the TJX mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “cvbvcn,” and there is no other evidence to suggest that Respondent was authorized to use the TJX mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii)
Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent uses the disputed domain name to pass themselves off as Complainant. Where a respondent uses a disputed domain name to pass itself off as a complainant, the Panel may find the respondent fails to make 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. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business).
Complainant provides screenshots of the disputed domain’s resolving page and Complainant’s own website. The screenshots of the disputed domain name’s resolving webpage show that the disputed domain name was used to impersonate Complainant while promoting and operating a money-making scam. The disputed domain name’s resolving website displays Complainant’s TJX red-and-white graphic logo. The page automatically redirects to a page displaying a “Sign up” form in which users are asked to input their mobile phone number and create a password. Complainant has received a number of queries from individuals who are confused as to the source and legitimacy of the disputed domain name’s resolving website. The Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent registered and uses the disputed domain name in bad faith because Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website for commercial gain. Where a respondent uses a disputed domain name to pass itself off as a complainant, the Panel may find evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). 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.”).
As previously noted, Complainant provides screenshots of the disputed domain’s resolving page and Complainant’s own website which show the disputed domain name was used to impersonate Complainant and to pass Respondent off as Complainant. Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iii) or (iv).
Complainant further contends that Respondent had knowledge of Complainant’s rights in the TJX mark at the time of registering the disputed domain name. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain name that Respondent had actual knowledge of Complainant’s right in its mark at the time of registering the disputed domain name, which supports a finding of bad faith registration under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <tjx66.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: September 12, 2022
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