Target Brands, Inc. v. Geose
Claim Number: FA0710001103218
Complainant is Target Brands, Inc. (“Complainant”), represented by Rita Sanzgiri of Faegre & Benson, LLP, 1900 Fifteenth Street, Boulder, CO, 80302-5414. Respondent is Geose (“Respondent”), cupcha 42, chisinau, chisinau md 2009, MD.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <target-store.info>, registered with Domain Discover.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically October 24, 2007; the National Arbitration Forum received a hard copy of the Complaint October 26, 2007.
On October 25, 2007, Domain Discover confirmed by e-mail to the National Arbitration Forum that the <target-store.info> domain name is registered with Domain Discover and that Respondent is the current registrant of the name. Domain Discover verified that Respondent is bound by the Domain Discover registration agreement and thereby has agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On October 29, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 19, 2007, 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@target-store.info by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 25, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. The disputed domain name that Respondent registered, <target-store.info>, is confusingly similar to Complainant’s TARGET mark.
2. Respondent has no rights to or legitimate interests in the <target-store.info> domain name.
3. Respondent registered and used the <target-store.info> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Target Stores, a licensee of Complainant, has continuously used the TARGET mark since 1962 in connection with a chain of retail discount department stores. Complainant holds numerous registrations of the TARGET mark worldwide, including with the United State Patent and Trademark Office (“USPTO”) (Reg. No. 845,615 issued February 27, 1968).
Respondent registered the <target-store.info> domain name December 20, 2006. It resolves to a website that features various third-party websites and advertisements, many of which offer adult oriented content. Respondent submitted an e-mail to the National Arbitration Forum indicating a willingness to sell the disputed domain name.
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. See 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 Complainant to 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 established with extrinsic evidence in this
proceeding that it has rights in the TARGET mark through registration with the
USPTO pursuant to Policy ¶ 4(a)(i). See
Complainant alleges that Respondent registered a domain name that contains in its entirety Complainant’s protected mark and that the domain name is therefore identical to or confusingly similar to a mark in which Complainant has protected rights. Respondent’s <target-store.info> domain name contains the Complainant’s TARGET mark in its entirety and then includes a hyphen followed by the generic term “store.” The inclusion of a hyphen and a generic term related to Complainant’s business do not distinguish a disputed domain name. Further, the disputed domain name includes the generic top-level domain (“gTLD”) “.info,” but this is irrelevant for the purposes of Policy ¶ 4(a)(i). As a result, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii),
Complainant must first establish a prima
facie case that Respondent has no rights or legitimate interests in the
disputed domain name. See VeriSign Inc. v. VeneSign
Respondent failed to submit a response to the Complaint and
in such circumstances, the Panel is permitted to presume that Respondent has no
rights or legitimate interests in the disputed domain name. However, the Panel
examines the record in consideration of the factors listed under Policy ¶ 4(c)
to determine if the submission shows evidence that Respondent has such rights. See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002)
(“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 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.”).
Nowhere in Respondent’s WHOIS information or elsewhere in
the record does it indicate that Respondent is or ever was commonly known by
the <target-store.info> domain name. Complainant avers that it never granted
Respondent permission to use the TARGET mark in any way. Absent affirmative evidence to the contrary,
the Panel finds that Respondent is not commonly known by the disputed domain
name pursuant to Policy ¶ 4(c)(ii) and registered the
domain name without permission. See 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); see also Compagnie de Saint
Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no
rights or legitimate interests where the respondent was not commonly known by
the mark and never applied for a license or permission from the complainant to
use the trademarked name).
Respondent’s <target-store.info> domain name resolves to a website featuring various third-party advertisements and links, many of which if clicked upon resolve to adult-oriented content. The Panel finds this to be neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Isleworth Land Co. v. Lost In Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (finding that the respondent’s use of its domain name to link unsuspecting Internet traffic to an adult-oriented website, containing images of scantily clad women in provocative poses, did not constitute a connection with a bona fide offering of goods or services or a noncommercial or fair use); see also Disney Enters., Inc. v. Dot Stop, FA 145227 (Nat. Arb. Forum Mar. 17, 2003) (finding that the respondent’s diversionary use of the complainant’s mark to attract Internet users to its own website, which contained a series of hyperlinks to unrelated websites, was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the disputed domain names).
Additionally,
Respondent sent an e-mail to the National Arbitration Forum demonstrating intent
to sell the disputed domain name to the National Arbitration Forum. The Panel finds this to be additional
evidence that Respondent has no rights or legitimate interests in the disputed
domain name pursuant to Policy ¶ 4(a)(ii). See Mothers Against Drunk Driving v.
Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) (holding
that under the circumstances, the respondent’s apparent willingness to dispose
of its rights in the disputed domain name suggested that it lacked
rights or legitimate interests in the domain name); see also Wal-Mart Stores,
Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000) (finding the respondent’s
conduct purporting to sell the domain name suggests it has no legitimate use).
The Panel finds that Complainant satisfied Policy ¶ 4(a)(ii).
Complainant also alleges that Respondent acted in bad faith
in registering and using a domain name containing in its entirety Complainant’s
protected mark. Respondent submitted an
e-mail to the FORUM indicating a willingness to sell the disputed domain
name. The Panel finds that this willingness
to readily dispose of the disputed domain name permits findings that Respondent
registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the
disputed domain name registration for sale establishes that the domain name was
registered in bad faith under Policy ¶ 4(b)(i).”); see also Am. Anti-Vivisection Soc’y v. “Infa
dot Net” Web Serv., FA 95685
(Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the domain
name, even if no certain price is demanded, are evidence of bad faith”).
Respondent is also presumed to be financially benefiting
from the various links and advertisements that display on the website that
resolves from the <target-store.info> domain name. The Panel assumes that “click-through fees”
provide compensation to Respondent for each Internet user who views and clicks
on one of Respondent’s links or advertisements.
The commercial advantage of a confusingly similar domain name
establishes further evidence of Respondent’s bad faith registration and use
pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v.
Domain Manager, FA 201976 (Nat. Arb. Forum
Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain
name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain
name provided links to Complainant's competitors and Respondent presumably
commercially benefited from the misleading domain name by receiving
‘click-through-fees.’”); 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)).
Lastly, the redirection of Internet users to adult-oriented content is itself evidence of Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) ( “[W]hatever the motivation of Respondent, the diversion of the domain name to a pornographic site is itself certainly consistent with the finding that the Domain Name was registered and is being used in bad faith.”); see also Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith).
The Panel finds that Complainant satisfied 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 <target-store.info> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Carolyn Marks Johnson, Panelist
Dated: December 7, 2007.
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