Target Brands, Inc. v. PrivacyProtect.org / Domain Admin
Claim Number: FA1102001371798
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is PrivacyProtect.org / Domain Admin (“Respondent”), Luxembourg.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <targetregistry.com>, registered with REGISTERMATRIX.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Houston Putnam Lowry, Chartered Arbitrator, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 8, 2011; the National Arbitration Forum received payment on February 15, 2011.
On March 1, 2011, REGISTERMATRIX confirmed by e-mail to the National Arbitration Forum that the <targetregistry.com> domain name is registered with REGISTERMATRIX and that Respondent is the current registrant of the name. REGISTERMATRIX has verified that Respondent is bound by the REGISTERMATRIX 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 March 4, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 24, 2011 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@targetregistry.com. Also on March 4, 2011, the Written Notice of the Complaint, notifying Respondent of the email 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 29, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Houston Putnam Lowry, Chartered Arbitrator, 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" 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 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:
Factual and Legal Grounds
1. As set forth more fully below, the Complainant owns certain trademarks and makes extensive use of them such that they have become famous.
(a) Complainant Target Owns Its Marks. Complainant Target is the owner of the distinctive and world famous TARGET trademarks and their corresponding logos (the “TARGET Marks”). For many years, and long prior to the creation of the <targetregistry.com> domain, Complainant commenced use of the TARGET Marks in connection with the advertising, marketing and operation of retail department stores, and other products and services related thereto. Since the inception of each of the TARGET Marks, Complainant Target has continually used such Marks in interstate commerce.
(b) The TARGET Marks Are Extensively Used, Promoted and Protected. Created in Minneapolis, Minnesota in 1962 as a division of the former Dayton Hudson Corporation, Complainant is now one of the most famous brands in the field of retail department stores. Complainant currently serves customers through approximately 1,750 stores in the United States, maintains offices in Bangalore, India, and is traded on the New York Stock Exchange under the ticker symbol TGT. In its fiscal year 2009, Complainant reported revenues of US$63.4 billion.
Complainant extensively promotes its TARGET Marks through print, web, television, and trade show advertising and expends millions of dollars in this effort. Complainant has also been the subject of extensive media coverage including stories in the New York Times, The Wall Street Journal, CNN and many other outlets. Target is consistently ranked as one of the most philanthropic companies in the U.S. and has been a major benefactor of relief efforts, including monetary and product donations after the September 11th attacks in 2001, the tsunami in South Asia in 2004, and Hurricane Katrina in 2005. The recipient of a number of business awards, Target’s accolades include being named one of America’s Most Popular Stores by Forbes Magazine in 2009, receiving the “Grassroots Innovation Award” in 2010 from the Public Affairs Council for the company’s participation in the National Civic Summit, and being named, by J.D. Power and Associates, as the highest in overall customer service for mass merchandisers 4 years running (2007-2010).
Complainant generates significant sales revenue as a result of the advertising and marketing it conducts on its <target.com> website. Through this domain, Complainant also provides information to current and prospective customers about the many different products it sells. As a result of Complainant’s long usage and promotion of the TARGET Marks, they have become famous and widely recognized by consumers.
The TARGET Marks are aggressively protected through registration and enforcement. Complainant Target owns many trademark registrations for the TARGET Marks, including United States Federal Trademark Registrations as follows:
Mark Reg. No. Reg. Date
TARGET 0818410 November 8, 1966
TARGET (With Logo) 0845615 March 5, 1968
TARGET 0845193 February 27, 1968
TARGET 1146216 January 20, 1981
TARGET (With Logo) 1282569 June 19, 1984
TARGET (With Logo) 1386318 March 11, 1986
2. Respondent’s registration of the <targetregistry.com> domain violates the Policy.
(a) The targetregistry.com Domain is identical or confusingly similar to the Marks under Policy ¶4(a)(i). Respondent’s <targetregistry.com> domain is confusingly similar, on its face, to one or more of Complainant’s registered TARGET trademarks. Searchers will likely be confused into believing that there is a connection of source, sponsorship, affiliation or endorsement between the Complainant’s Marks and Respondent by Respondent’s use of the <targetregistry.com> domain.
It has been held, in decisions too numerous to mention, that a minor misspelling of a Complainant’s trademark, or the addition of generic or other words creates a confusingly similar domain name. For example, in DIRECTV, Inc v. Digi Real Estate Foundation, NAF Claim No. FA0702000914942 the Panel found that “Respondent’s <dirtectv.com>, <durectv.com>, <dorecttv.com>, and <dishdirectv.com> domain names are all confusingly similar to Complainant’s DIRECTV mark pursuant to Policy ¶4(a)(i), because Respondent’s domain names each contain Complainant’s mark in its entirety or are simply a misspelled variation of the DIRECTV mark.” In relation to a different domain owned by respondent, the Panel went on to hold that “Respondent’s <dishdirectv.com> domain name contains Complainant’s mark in its entirety and adds the generic word ‘dish.’ Prefixing ‘directv’ with the generic word ‘dish’ does not prevent a finding of confusingly similarity under Policy ¶4(a)(i).” The Panel held that all of the domains at issue are “likely to cause confusion among customers searching for Complainant’s goods and services.” Similarly, in Brownells, Inc. v. Texas International Property Associates, WIPO Case No. D2007-1211, the respondent used a minor misspelling of the complainant’s trademark leading the panel to find that “Respondent has chosen the Domain Name precisely to attract users who mistype the name of the complainant’s website.” Id. See also, Christie’s Inc. v. Target’s Jewelry Auction, Inc., WIPO Case No. D2001-0075 (finding that the domain name <christiesauction.com> is confusingly similar to the complainant's mark since it merely adds the word “auction” used in its generic sense).
Similarly to the above-cited decisions, the Respondent in the present dispute initially attracts searchers to its website by using an identical or confusingly similar copy of the Complainant’s TARGET Marks, thereby making visitors to its website think that they are being linked to one of the Complainant’s legitimate sites. See, Focus Do It All Group v. Athanasios Sermbizis, WIPO Case No. D2000-0923 (Complainant’s trademark rights and use of its mark “make it likely beyond real doubt that consumers who know that mark will think that ‘focus-do-it-all.com’ is their address. As reasoned in Athanasios, even if searchers discover they are not at one of Complainant’s sites, searchers may be led to believe that the Complainant endorsed, sponsored or affiliated itself with the goods and services offered at the website of the targetregistry.com domain. As in Athanasios, Respondent here uses the TARGET Marks in its site’s domain name as well as in the title and body of its website. It only makes sense that if searchers see the Marks listed in the body of the <targetregistry.com> domain web page and numerous links to other goods and services are also listed on that page, searchers will be confused and led to believe that, even if the goods and services are not those of Complainant, they are at least affiliated with, endorsed or sponsored by Complainant.
(b) Respondent has no rights or legitimate interest in the <targetregistry.com> Domain Under Policy ¶4(a)(ii). Section 4(c) of the Policy sets out certain circumstances which, if proven by the evidence presented, may demonstrate Respondent’s rights or legitimate interests to the <targetregistry.com> domain. None of these circumstances apply to Respondent in the present dispute.
Respondent’s actions are not a bona fide offering of goods or services under Policy ¶4(c)(i). Through the use of a classic pay-per-click website, Respondent’s domain name diverts Complainant’s customers and potential customers to Respondent’s pay-per-click website and then to other websites which are not associated with Complainant. (Images of Respondent’s website, as captured on or about January 28, 2011, are attached at Exhibits F 1-2.) ICANN panels have found that leading consumers who are searching for a particular business, to a site where the same or similar services provided by others are listed, is not a bona fide use. Homer, TLC Inc. v. Kang, NAF Case No. FA573872 (“Respondent’s use of domain name that is identical to Complainant’s mark to divert Internet users to third-party website for Respondent’s own commercial gain does not constitute a bona fide offering ... or a legitimate noncommercial or fair use ....”).
Respondent is not commonly known by the <targetregistry.com> domain or the name TARGET and so its actions do not fall within Policy ¶4(c)(ii). Upon information and belief, Respondent is not commonly known by any of Complainant’s Marks, nor does Respondent operate a business or other organization under such marks or names and does not own any trademark or service mark rights in these names. See, Dell Inc. v. George Dell and Dell Net Solutions, WIPO Case No. D2004-0512 (Regarding the domain <dellnetsolutions.com> “there is no evidence that the Respondents’ business has been commonly known by that name. Further, the Respondents added terms to the surname to create the disputed domain name.”)
Respondent is not making a legitimate noncommercial or fair use of the <targetregistry.com> domain without intent for commercial gain, and so its actions do not fall within Policy ¶4(c)(iii). Instead, Respondent is using the <targetregistry.com> domain to confuse and misleadingly divert consumers, or to tarnish the Marks of the Complainant. In Dr. Ing. h.c. F. Porsche AG v. Limex, LLC, WIPO Case No. D2003-0649 the Panel noted that “The 3 domain names in issue use the PORSCHE trademark to attract potential customers to the generic [auto] loan business.” The Panel held that such use, in a domain name, of one manufacturer’s trademark to offer products or services relating to goods sold under that trademark and also other manufacturer’s trademarks did not constitute a legitimate or fair use of the domain. Id.
Further, in Athanasios, supra, the Panel found that respondent’s use “could in no way be characterized as fair, because consumers would think that they were visiting a site of the Complainant until they found that instead they were in a directory which would do the Complainant potential harm”. Here, searchers for Complainant’s various goods and services, who found the <targetregistry.com> domain, would be confused and think they were visiting a site of the Complainant’s until they discovered that they were in a directory of links to competitors and other goods and services. Such use cannot be considered fair. See, Mpire Corporation v. Michael Frey, WIPO Case No. D2009-0258 (“While the intention to earn click-through-revenue is not in itself illegitimate, the use of a domain name that is deceptively similar to a trademark to obtain click-through-revenue is found to be bad faith use. See for instance L’Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc. WIPO Case No. D2005-0623.”)
Lastly, Respondent’s use has tarnished and diluted the TARGET Marks. Respondent has diminished consumers’ capacity to associate the Marks with the quality products offered under the Marks by the Complainant by using the Marks in association with a directory site which provides links to numerous products and services not associated with or related to the Complainant’s quality branded products. Respondent’s use creates the very real risk that Complainant’s trademarks are not only being associated with numerous products and services not related to Complainant’s branded products, but also to products and services linked to directory sites over which Complainant has no quality control.
(c) Respondent Registered The <targetregistry.com> Domain In Bad Faith Under Policy ¶4(a)(iii). The Policy clearly explains that bad faith can be found where a Respondent, by using a domain name, intentionally attempts to attract, for commercial gain, Internet searchers to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location. See Policy ¶4(b)(iv).
Respondent intentionally used the TARGET Marks without consent from Complainant. Respondent was put on constructive notice of Complainant’s rights in its Marks through Complainant’s extensive prior use of the Marks as well as its various trademark registrations, most of which predate the creation date of the <targetregistry.com> domain. See, American Funds Distributors, Inc. v. Domain Administration Limited, WIPO Case No. D2007-0950 (“the extensive prior use of that name and the fact that it comprises the dominant part of several U.S. registered trademarks provided constructive knowledge of the Complainant’s trademark rights….”). Therefore, Respondent knowingly and intentionally used the TARGET Marks in violation of Complainant’s rights in its Marks. Moreover, the content on Respondent’s website at the <targetregistry.com> domain reveals that Respondent has actual knowledge of the Marks and Complainant’s goods associated with each and is purposefully trading on the Marks.
Respondent is obtaining commercial gain from its use of the website at the <targetregistry.com> domain. This is a directory or “pay-per-click” website providing a listing of hyperlinks, some of which lead to Complainant’s websites and some to the websites of Complainant’s competitors. Upon information and belief, each time a searcher clicks on one of these search links, Respondent receives compensation from the various website owners who are linked through the website of the <targetregistry.com> domain. Most likely, Respondent receives compensation based upon the number of hits the website owners get from being linked to the directory site. See AllianceBernstein LP v. Texas International Property Associates - NA NA, WIPO Case No. D2008-1230, and Brownells, D2007-1211 (finding in similar cases that a respondent intentionally attempted to attract internet searchers for commercial gain).
In, AllianceBernstein the respondent registered the domain name <allaincebernstein.com>, which was indisputably identical to the complainant’s ALLIANCEBERNSTEIN mark. The domain name led to a search directory website with links to third party vendors, including competitors of complainant. Id. The Panel inferred that the respondent received click-through fees by directing users to various commercial website via these links and found that the respondent’s use was for commercial gain and was in bad faith under Policy ¶4(b)(iv). Id.
In Brownells, the respondent registered the domain name <brwonells.com>, which the panel found to be nearly identical to the complainant’s mark, with two of the letters in the mark reversed. Brownells, D2007-1211. The respondent’s website offered links to hunting equipment and related items. Id. The panel found that such listing of links were provided purely for respondent’s commercial gain. Id.
Here, Respondent’s generation of click-through fees from its operation of a pay-per-click site under the <targetregistry.com> domain alone constitutes commercial gain. See AllianceBernstein, D2008-1230. Moreover, similar to the facts in Brownells and AllianceBernstein, Respondent’s use of the domain name and website results in a commercial gain for others by placing links to competitors of Complainant and other individuals, groups or entities on its website. Just as commercial gain was sought for the respondents in the abovementioned cases, commercial gain was sought by Respondent here for itself and the various website owners who were linked to the web pages of the <targetregistry.com> domain. Respondent’s use of this domain name is commercial because the various companies linked to the directory sites of the <targetregistry.com> domain benefit from the subsequent interest and purchases of those searches. ICANN Panels have held that there only needs to be commercial gain sought by some party for the use to be commercial. See, Focus Do It All Group v. Athanasios Sermbizis, WIPO Case No. D2000-0923 (finding that “[I]t is enough that commercial gain is being sought for someone” for a use to be commercial).
Of course, as the owner of the <targetregistry.com> domain, Respondent is entirely and solely responsible for the content of its website. See, Disney Enterprises, Inc. v. ll, NAF Claim No. FA1007001336979 (2010) (Respondent acted in bad faith, despite its claimed lack of control over the content on its parked, pay-per-click website); MasterCard International Incorporated v. Banu Asum Kilich, WIPO Case No. D2009-1525 (Panel agreed with complainant’s assertion that “as the owner of the disputed domain name, [respondent] is responsible for the contents of the website, regardless of whether a third party profits from the links placed on the website.”
Finally, as more fully set forth above, Respondent’s bad faith is demonstrated by its intentional use of the TARGET Marks in its domain name to attract Internet searchers by creating a likelihood of confusion with Complainant’s Marks. See, e.g., DIRECTV, Inc v. Digi Real Estate Foundation. Thus, all of the factors under Policy ¶4(b)(iv) strongly demonstrate that Respondent has registered and used the <targetregistry.com> domain in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Target Brands, Inc., uses the TARGET mark in connection with the advertising, marketing, and operation of retail department stores, and other products and services related to its business. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the TARGET mark (e.g., Reg. No. 818,410 issued November 8, 1966).
Respondent registered the <targetregistry.com> domain name on March 25, 2004. The disputed domain name resolves to a pay-per-click website that provides hyperlinks for third-party websites that are unrelated to Complainant as well as hyperlinks for Complainant’s competitors.
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 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 asserts rights in the TARGET mark through its numerous registrations of the mark with the USPTO (e.g., Reg. No. 818,410 issued November 8, 1966). The Panel finds these trademark registrations sufficiently prove Complainant’s right in the TARGET mark pursuant to Policy ¶4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [complainant’s] mark is registered with the USPTO, [the] complainant has met the requirements of Policy ¶4(a)(i).”); see also Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”). The Panel also finds it is irrelevant whether Complainant holds a trademark registration with the trademark authority in the country in which Respondent resides. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant whether the complainant has registered its trademark in the country of the respondent’s residence).
Complainant contends the <targetregistry.com> domain name is confusingly similar to its TARGET mark. Respondent replicates Complainant’s mark in the disputed domain name and then adds the generic term “registry” and the generic top-level domain (“gTLD”) “.com” to the mark. The Panel finds these additions fail to sufficiently distinguish Respondent’s domain name from Complainant’s mark. See 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); see also AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent failed to differentiate the <aimprofiles.com> domain name from the complainant’s AIM mark by merely adding the term “profiles”); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Therefore, the Panel holds Respondent’s <targetregistry.com> domain name is confusingly similar to Complainant’s TARGET mark under Policy ¶4(a)(i).
The Panel finds Complainant has satisfied Policy ¶4(a)(i).
Complainant must first make a prima facie case showing Respondent lacks rights and legitimate interests in the <targetregistry.com> domain name pursuant to Policy ¶4(a)(ii). The burden then shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name. The Panel may view Respondent’s failure to submit a Response as evidence that Respondent lacks rights and legitimate interests. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Although Respondent has failed to submit a Response, the Panel will evaluate the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶4(c).
Complainant has not consented to Respondent’s use of its TARGET mark. The WHOIS information does not indicate Respondent is commonly known by the disputed domain name. Without evidence in the record to the contrary, the Panel concludes Respondent is not commonly known by the <targetregistry.com> domain name under Policy ¶4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶4(c)(ii) based on the WHOIS information and other evidence in the record)
Complainant alleges Respondent uses the <targetregistry.com> domain name to operate a pay-per-click website. Complainant submits a screen shot of the resolving website. This image shows a directory website that contains hyperlinks to third-party sites unrelated to Complainant as well as links for Complainant’s competitors. In addition, the resolving website provides a hyperlink for Complainant’s official website. The Panel presumes Respondent profits from its use of the disputed domain name through the receipt of pay-per-click fees. Accordingly, the Panel holds Respondent does not use the <targetregistry.com> domain name to make a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii). See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii)); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(iii)).
The Panel finds Complainant has satisfied Policy ¶4(a)(ii).
The Panel finds the <targetregistry.com> domain name redirects Internet users seeking Complainant’s website to a website that provides hyperlinks for Complainant’s competitors. Therefore, the Panel determines Respondent’s domain name disrupts Complainant’s business, which constitutes registration and use in bad faith under Policy ¶4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat. Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy ¶4(b)(iii) where a respondent used the disputed domain name to operate a commercial search engine with links to the complainant’s competitors).
The Panel presumes Respondent obtains commercial gain from its use of the disputed domain name through the receipt of pay-per-click fees. Furthermore, the Panel holds the <targetregistry.com> domain name is confusingly similar to Complainant’s TARGET mark. Therefore, the Panel finds Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s TARGET mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. As a result, the Pane holds Respondent’s behavior constitutes registration and use in bad faith under Policy ¶4(b)(iv). See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶4(b)(iv)); see also The Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Nat. Arb. Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶4(b)(iv)).
The Panel finds Complainant has 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 <targetregistry.com> domain name be TRANSFERRED from Respondent to Complainant.
Houston Putnam Lowry, Chartered Arbitrator, Panelist
Dated: March 30, 2011
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