DECISION

Target Brands, Inc. v. Seventh Summit Ventures

Claim Number:  FA0307000170634

PARTIES

Complainant is Target Brands, Inc., Minneapolis, MN,  (“Complainant”) represented by Jodi A. DeSchane, of Faegre & Benson LLP. Respondent is Seventh Summit Ventures, St. Johns, ANTIGUA AND BARBUDA (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <taregt.com>, <targat.com>, <targey.com>, <targrt.com> and <targte.com>, registered with Tucows, Inc.

PANEL

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.

Louis E. Condon as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the "Forum") electronically on July 22, 2003; the Forum received a hard copy of the Complaint on July 23, 2003.

On July 23, 2003, Tucows, Inc. confirmed by e-mail to the Forum that the domain names <taregt.com>, <targat.com>, <targey.com>, <targrt.com> and <targte.com> are registered with Tucows, Inc. and that Respondent is the current registrant of the names. Tucows, Inc. has verified that Respondent is bound by the Tucows, 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 July 28, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 18, 2003 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@taregt.com, postmaster@targat.com, postmaster@targey.com, postmaster@targrt.com and postmaster@targte.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On August 27, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Louis E. Condon 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."  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.

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <taregt.com>, <targat.com>, <targey.com>, <targrt.com> and <targte.com> domain names are confusingly similar to Complainant’s TARGET mark.

2. Respondent does not have any rights or legitimate interests in the <taregt.com>, <targat.com>, <targey.com>, <targrt.com> and <targte.com> domain names.

3. Respondent registered and used the <taregt.com>, <targat.com>, <targey.com>, <targrt.com> and <targte.com> domain names in bad faith.

B.  Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Target Brands, Inc., holds numerous registrations for the TARGET mark on the Principal Register of the U.S. Patent and Trademark Office, including U.S. Reg. No. 845,193 (registered on February 27, 1968) and U.S. Reg. No. 1,386,318 (registered on March 11, 1986). The TARGET mark has been used in commerce since 1962 in connection with a chain of retail discount department stores. To date, the TARGET mark is used in this context for over 1,100 stores in 47 states. Complainant’s TARGET mark enjoys a high degree of recognition with consumers in the United States, and is utilized by Complainant online at the <target.com> domain name.

Respondent, Seventh Summit Ventures, registered the <taregt.com> domain name on November 30, 2000, the <targat.com> domain name on December 4, 2000, the <targey.com> domain name on December 12, 2001, the <targrt.com> domain name on November 22, 2000 and the <targte.com> domain name on December 13, 2001. Respondent is not licensed or authorized to use Complainant’s TARGET mark for any purpose. Internet users who reach the disputed domain names are redirected to the <superinternetdeals.com> domain name, which features both banner and pop-up advertisements for various types of goods and services.

DISCUSSION

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.

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.

Identical and/or Confusingly Similar

Complainant has established rights in the TARGET mark though registration of the mark on the Principal Register of the U.S. Patent and Trademark Office, as well as through widespread and continuous use of the mark in commerce.

Respondent’s <taregt.com>, <targat.com>, <targey.com>, <targrt.com> and <targte.com> domain names are each confusingly similar to Complainant’s TARGET mark. With each domain name, Respondent has either transposed the letters of Complainant’s mark or misspelled the mark in such a way so as to take advantage of Internet users who accidentally misspell Complainant’s mark when attempting to reach the <target.com> domain name. Such devious behavior does not prevent a finding of confusing similarity under 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 Respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to Complainant’s marks); see also Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to Complainant’s GOOGLE mark and noting that “[t]he transposition of two letters does not create a distinct mark capable of overcoming a claim of confusing similarity, as the result reflects a very probable typographical error”).

Accordingly, the Panel finds that the <taregt.com>, <targat.com>, <targey.com>, <targrt.com> and <targte.com> domain names are confusingly similar to Complainant’s TARGET mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent uses the disputed domain names, all designed to siphon users from Complainant’s website, to host banner and pop-up advertisements, presumably for commercial gain. Such unauthorized use of Complainant’s mark is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name. Thus, Respondent may not avail itself of Policy ¶¶ 4(c)(i) or (iii). See FAO Schwarz v. Zuccarini, FA 95828 (Nat. Arb. Forum Dec. 1, 2000) (finding no rights or legitimate interests in the domain names <faoscwartz.com>, <foaschwartz.com>, <faoshwartz.com>, and <faoswartz.com> where Respondent was using these domain names to link to an advertising website); see also Tercent Inc. v. Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that Respondent’s use of the disputed domain name to host a series of hyperlinks and a banner advertisement was neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the domain name).

None of Respondent’s domain names spell a recognized word. Instead, each is valuable only insofar as they resemble Complainant’s TARGET mark. Thus, the Panel is unwilling to find that Respondent was “commonly known by” any of the disputed domain names prior to this dispute. See MRA Holding, LLC v. Costnet, FA 140454 (Nat. Arb. Forum Feb. 20, 2003) (noting that “the disputed domain name does not even correctly spell a cognizable phrase” in finding that Respondent was not “commonly known by” the name GIRLS GON WILD or <girlsgonwild.com>); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where Respondent was not commonly known by the mark and never applied for a license or permission from Complainant to use the trademarked name).

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <taregt.com>, <targat.com>, <targey.com>, <targrt.com> and <targte.com> domain names under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent registered and used the disputed domain names in bad faith. Respondent presumably receives a profit from its use of the disputed domain names, through commissions or referral fees from Internet users who click on the various advertisements displayed via the disputed domain names. As Respondent’s commercial gain is the result of its intentional (and successful) attempt to create a likelihood of confusion with Complainant’s TARGET mark, Respondent’s activities run afoul of Policy ¶ 4(b)(iv). See Drs. Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000) (finding bad faith where Respondent directed Internet users seeking Complainant’s site to its own website for commercial gain); see also Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that Respondent’s registration of an infringing domain name to redirect Internet users to banner advertisements constituted bad faith use of the domain name); see also Bama Rags, Inc. v. Zuccarini, FA 94380 (Nat. Arb. Forum May 8, 2000) (finding bad faith where Respondent attracted users to advertisements).

The Panel thus finds that Respondent registered and used the <taregt.com>, <targat.com>, <targey.com>, <targrt.com> and <targte.com> domain names in bad faith, and that Policy ¶ 4(a)(iii) is satisfied.

DECISION

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.

Accordingly, it is Ordered that the <taregt.com>, <targat.com>, <targey.com>, <targrt.com> and <targte.com> domain names be TRANSFERRED from Respondent to Complainant.

Louis E. Condon, Panelist

Dated:  September 9, 2003

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