Target Brands, Inc. v. domaen.com,
rodricks.net, and Rickson Rodricks
Claim Number: FA0509000560157
Complainant is Target Brands, Inc. (“Complainant”), represented
by Jodi A. DeSchane, of Faegre & Benson LLP,
2200 Wells Fargo Center, 90 South Seventh St., Minneapolis, MN 55402. Respondent is domaen.com, rodricks.net and Rickson Rodricks (“Respondent”),
Prakash, Vazira-Naka, L.T. Road, Borivil-W, Mumbai, IN.
REGISTRAR
AND DISPUTED DOMAIN NAMEs
The
domain names at issue are <ttarget.com> and <ttarget.info>,
registered with Enom, Inc. and Sipence, Inc., respectively.
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.
Honorable
Karl V. Fink (Ret.) as Panelist.
Complainant
submitted a Complaint to the National Arbitration Forum electronically on September
13, 2005; the National Arbitration Forum received a hard copy of the Complaint
on September 13, 2005.
On
September 13, 2005, Sipence, Inc., confirmed by e-mail to the National
Arbitration Forum that the <ttarget.info> domain name is
registered with Sipence, Inc., and that Respondent is the current registrant of
the name. Sipence, Inc. has verified
that Respondent is bound by the Sipence, Inc. 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
September 20, 2005, Enom, Inc., confirmed by e-mail to the National Arbitration
Forum that the <ttarget.com> domain name is registered with Enom,
Inc., and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is
bound by the Enom, Inc. 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
September 22, 2005, a Notification of Complaint and Commencement of
Administrative Proceeding (the "Commencement Notification"), setting
a deadline of October 12, 2005 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@ttarget.com and
postmaster@ttarget.info by e-mail.
Having
received no response from Respondent, the National Arbitration Forum
transmitted to the parties a Notification of Respondent Default.
On
October 17, 2005, pursuant to Complainant's request to have the dispute decided
by a single-member Panel, the National Arbitration Forum appointed Honorable
Karl V. Fink (Ret.) 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 <ttarget.com>
and <ttarget.info> domain names are confusingly similar to
Complainant’s TARGET mark.
2. Respondent does not have any rights or
legitimate interests in the <ttarget.com> and <ttarget.info>
domain names.
3. Respondent registered and used the <ttarget.com>
and <ttarget.info> domain names in bad faith.
B. Respondent failed to submit a Response in
this proceeding.
Complainant,
Target Brands, Inc., is a licensor of Target Corporation, which, since 1962,
has been operating a chain of “Target” retail discount department stores. Currently, Complainant operates more than
1,300 stores in forty-seven states.
Complainant holds numerous registrations for its TARGET mark with the
United States Patent and Trademark Office (“USPTO”) (i.e., Reg. No. 2,793,901
issued December 16, 2003).
Additionally, Complainant operates a website at the <target.com>
domain name. As a result of extensive
use and advertising, Complainant’s mark enjoys a high degree of recognition and
distinctiveness.
Respondent
registered the <ttarget.com> domain name on August 9, 2002 and the
<ttarget.info> domain name on September 28, 2004. Respondent is using the disputed domain
names to redirect Internet users to Respondent’s commercial website featuring
links to third-party businesses not directly associated with Complainant’s
shopping center 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. 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 has
established rights in the TARGET mark through registration of the mark with the
USPTO and through continuous use of the mark in commerce. See Am. Online, Inc. v. Thomas P.
Culver Enters., D2001-0564 (WIPO June 18, 2001) (finding that successful
trademark registration with the USPTO creates a presumption of rights in a
mark); see also Innomed Tech., Inc. v. DRP Servs., FA
221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of
the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the
mark.”).
Respondent’s <ttarget.com> and <ttarget.info> domain
names are confusingly
similar to Complainant’s TARGET mark because Respondent’s domain names incorporate
Complainant’s mark in its entirety, add the letter “t” and add the generic
top-level domains “.com” and “.info” to the mark. The Panel finds that such minor alterations to Complainant’s
registered mark do not sufficiently distinguish Respondent’s domain names
pursuant to Policy ¶ 4(a)(i). See
Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000)
(finding that, by misspelling words and adding letters to words, a the
respondent does not create a distinct mark but nevertheless renders the domain
name confusingly similar to the complainant’s marks); see also Am. Online, Inc.
v. Tencent Commc’ns Corp., FA 93668 (Nat. Arb. Forum Mar. 21, 2000)
(finding that <oicq.net> and <oicq.com> are confusingly similar to
the complainant’s ICQ mark); see also Nev. State Bank v. Modern Ltd. – Cayman
Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been
established that the addition of a generic top-level domain is irrelevant when
considering whether a domain name is identical or confusingly similar under the
Policy.”); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545
(Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is
irrelevant when establishing whether or not a mark is identical or confusingly
similar, because top-level domains are a required element of every domain
name.”).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant
alleges that Respondent does not have rights or legitimate interests in the <ttarget.com>
and <ttarget.info> domain names.
Once Complainant makes a prima facie case in support of its
allegations, the burden shifts to Respondent to prove that it does have rights
or legitimate interests pursuant to Policy ¶ 4(a)(ii). Due to Respondent’s failure to respond to
the Complaint, the Panel assumes that Respondent does not have rights or
legitimate interests in the disputed domain names. See G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the
complainant has asserted that respondent does not have rights or legitimate
interests with respect to the domain name, it is incumbent on respondent to
come forward with concrete evidence rebutting this assertion because this
information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v.
Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under
certain circumstances, the mere assertion by the complainant that the
respondent does not have rights or legitimate interests is sufficient to shift
the burden of proof to the respondent to demonstrate that such a right or
legitimate interest does exist).
Additionally,
the <ttarget.com> and <ttarget.info> domain names are
confusingly similar to Complainant’s TARGET mark and are used to redirect Internet
users to Respondent’s commercial website featuring links to third-party
businesses not directly associated with Complainant’s business. The Panel finds that Respondent’s use of
domain names that are confusingly similar to Complainant’s mark to divert Internet
users to a website that links to a third-party website and for which
Complainant presumably receives click-through fees is not a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i), nor is it a
legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See 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); see also Black
& Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June
24, 2002) (holding that the respondent’s use of the disputed domain name to
redirect Internet users to commercial websites, unrelated to the complainant
and presumably with the purpose of earning a commission or pay-per-click
referral fee did not evidence rights or legitimate interests in the domain
name).
Moreover,
Respondent has offered no evidence and there is no evidence in the record
suggesting that Respondent is commonly known by the <ttarget.com>
or <ttarget.info> domain name.
Thus, Respondent has not established rights to or legitimate interests
in the <ttarget.com> and <ttarget.info> domain names
pursuant to Policy ¶ 4(c)(ii). See 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); see also Gallup Inc. v. Amish
Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the
respondent does not have rights in a domain name when the respondent is not
known by the mark); see also Broadcom
Corp. v. Intellifone Corp., FA 96356 (Nat. Arb. Forum Feb. 5, 2001)
(finding no rights or legitimate interests because the respondent was not
commonly known by the disputed domain name nor was the respondent using the
domain name in connection with a legitimate or fair use).
The Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
Respondent
intentionally registered domain names that incorporate Complainant’s TARGET
mark for Respondent’s commercial gain.
Respondent registered and used the <ttarget.com> and <ttarget.info>
domain names in bad faith pursuant to Policy ¶ 4(b)(iv), because Respondent
intentionally attempted to attract Complainant’s potential customers to
Respondent’s website by taking advantage of Internet users who are searching
under Complainant’s TARGET mark and diverting them to Respondent’s commercial
website. See Perot Sys. Corp. v. Perot.net, FA 95312
(Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in
question is obviously connected with the complainant’s well-known marks, thus
creating a likelihood of confusion strictly for commercial gain); see also Am. Online, Inc. v. Fu, D2000-1374 (WIPO
Dec. 11, 2000) (finding that the respondent intentionally attempted to attract
Internet users to his website for commercial gain by creating a likelihood of
confusion with the complainant’s mark and offering the same services as the
complainant via his website); see also Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13,
2000) (finding bad faith where the respondent attracted users to a website
sponsored by the respondent and created confusion with the complainant’s mark
as to the source, sponsorship, or affiliation of that website).
Furthermore,
Respondent has engaged in the practice of typosquatting by adding an extra “t”
to Complainant’s mark. Typosquatting
itself is evidence of bad faith registration and use under the Policy. See Nat’l Ass’n of Prof’l Baseball Leagues v. Zuccarini,
D2002-1011 (WIPO Jan. 21, 2003) (“Typosquatting is the intentional misspelling
of words with intent to intercept and siphon off traffic from its intended
destination, by preying on Internauts who make common typing errors. Typosquatting is inherently parasitic and of
itself evidence of bad faith”); see
also Canadian Tire Corp., Ltd. v. domain adm’r no.valid.email@worldnic.net
1111111111, D2003-0232 (WIPO May 22, 2003) holding that an “absence
of a dot between the ‘www’ and
‘canadiantire.com’ [in the <wwwcanadiantire.com> domain name is] likely
to confuse Internet users, encourage them to access Respondent’s site” and
evidenced bad faith registration and use of the domain name.
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 <ttarget.com> and <ttarget.info>
domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated:
October 28, 2005
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page