Target Brands, Inc. v. Laurel Lance
Claim Number: FA2003001889924
Complainant is Target Brands, Inc. (“Complainant”), represented by Steven M. Levy of FairWinds Partners, LLC, District of Columbia, USA. Respondent is Laurel Lance (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <checktargetgiftbalance.com>, registered with BigRock Solutions Ltd.
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.
David A. Einhorn as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 26, 2020; the Forum received payment on April 1, 2020.
On March 27, 2020, BigRock Solutions Ltd confirmed by e-mail to the Forum that the <checktargetgiftbalance.com> domain name is registered with BigRock Solutions Ltd and that Respondent is the current registrant of the name. BigRock Solutions Ltd has verified that Respondent is bound by the BigRock Solutions Ltd 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 April 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 22, 2020 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@checktargetgiftbalance.com. Also on April 2, 2020, 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 April 27, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David A. Einhorn 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 uses its mark in connection with the operation of retail department stores. Complainant has rights in the TARGET mark through its registration of the mark with multiple trademark agencies, including the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 887,693, registered Feb. 28, 1968). Respondent’s <checktargetgiftbalance.com> domain name is identical or confusingly similar to Complainant’s mark as it merely adds the generic terms “check,” “gift” and “balance” and a generic top-level domain (“gTLD”) to Complainant’s mark.
Respondent lacks rights or legitimate interests in the <checktargetgiftbalance.com> domain name. Respondent is not commonly known by the disputed domain name and Respondent does not operate a legitimate business or other organization under the name. 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. Instead, the disputed domain name resolves to a fake gift card balance checking site which is designed to pass off as a legitimate site of Complainant. Respondent attempts to divert consumers to its fraudulent gift card balance checking site as part of an ongoing commercial enterprise based on trademark infringement.
Respondent registered and uses the <checktargetgiftbalance.com> domain name in bad faith. Respondent attempts to attract Internet uses to the disputed domain name and financially gain by stealing gift card information entered by users. Respondent had actual notice of Complainant’s trademark rights prior to registration of the disputed domain name given the longstanding use and fame of the mark.
B. Respondent
Respondent failed to submit a response in this proceeding. The Panel notes that Respondent registered the <checktargetgiftbalance.com> domain name on December 8, 2019.
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 TARGET mark based on registration of the mark with multiple trademark agencies, including the USPTO (e.g. Reg. No. 887,693, registered Feb. 28, 1968). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Accordingly, the Panel finds that Complainant has established rights in the TARGET mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <checktargetgiftbalance.com> domain name is identical or confusingly similar to Complainant’s mark as it merely adds the generic terms “check,” “gift” and “balance” to Complainant’s mark. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 24, 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). The Panel therefore finds that the <checktargetgiftbalance.com> domain name is confusingly similar to the TARGET mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent lacks rights or legitimate interests in the <checktargetgiftbalance.com> domain name. Respondent is not commonly known by the disputed domain name and Respondent does not operate a legitimate business or other organization under the name. 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 “Laurel Lance,” and there is no other evidence to suggest that Respondent was authorized to use the TARGET mark. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant states that Respondent fails to use the <checktargetgiftbalance.com> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a fake gift card balance checking site which is designed to pass off as a legitimate site of Complainant. Passing off as a complainant to divert Internet users to a respondent’s website is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Complainant argues that Respondent attempts to divert consumers to its fraudulent gift card balance checking site as part of an ongoing commercial enterprise based on trademark infringement. Complainant provides screenshots of the resolving webpage which displays Complainant’s mark and branding with fields for users to enter gift card information. The Panel therefore finds Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered and uses the <checktargetgiftbalance.com> domain name in bad faith as Respondent attempts to attract Internet uses to the disputed domain name and financially gain by stealing gift card information entered by users. Use of a disputed domain name to pass off as a complainant in furtherance of an attempt to defraud users shows bad faith registration and use per Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Caroline Alves Maia, FA 1796113 (Forum Aug. 6, 2018) (finding the respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iv) because the respondent used the disputed domain name to present users with a website that was “virtually identical, with the same color scheme, the same layout and the same substantive content” and used the website to gain access to users’ cryptocurrency accounts). Complainant provides screenshots of the resolving webpage which displays Complainant’s mark and branding with fields for users to enter gift card information. The Panel therefore finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant finally contends Respondent had actual notice of Complainant’s trademark rights prior to registration of the disputed domain name given the longstanding use and fame of the mark. Registration of a domain name containing a famous or well-known mark can indicate actual knowledge of a mark at the time of registration and show bad faith registration per Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Complainant submits evidence of Complainant’s advertising campaigns, social media pages, and news coverage of Complainant in support of Complainant’s assertion that the mark is well-known. The Panel therefore finds that respondent had actual knowledge of Complainant’s mark at registration of the disputed domain name and therefore registered it in bad faith per Policy ¶ 4(a)(iii).
Therefore, Complainant has also 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 <checktargetgiftbalance.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn Panelist
Dated: May 8, 2020
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