DECISION

Target Brands, Inc. v. Anthony Melia a/k/a AMP

Claim Number: FA0305000158432

PARTIES

Complainant is Target Brands, Inc., Minneapolis, MN (“Complainant”) represented by Ann Dunn Wessberg of Faegre & Benson LLP. Respondent is Anthony Melia a/k/a AMP, Lancs, United Kingdom (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <target-xxx.com> registered with Tucows, Inc.

PANEL

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.

The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.

PROCEDURAL HISTORY

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

On May 23, 2003, Tucows, Inc. confirmed by e-mail to the Forum that the domain name <target-xxx.com> is registered with Tucows, Inc. and that Respondent is the current registrant of the name. 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 May 27, 2003, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of June 16, 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@target-xxx.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 7, 2003, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 name be transferred from Respondent to Complainant.

PARTIES' CONTENTIONS

A.  Complainant makes the following assertions:

1. Respondent’s <target-xxx.com> domain name is confusingly similar to Complainant’s TARGET mark.

2. Respondent does not have any rights or legitimate interests in the <target-xxx.com> domain name.

3. Respondent registered and used the <target-xxx.com> domain name in bad faith.

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

FINDINGS

Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the TARGET mark (Reg. No. 845,193 registered on February 27, 1968) related to retail department stores, retail grocery stores, retail bakeries, prescription compounding and dispensing, and restaurant and snack bar services. Complainant operates an informational and on-line shopping website at the <target.com> domain name.

Respondent registered the <target-xxx.com> domain name on October 3, 2002. The website at the disputed domain name reveals a naked woman apparently on a bed along with the caption “Coming Soon.”

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 its rights in the TARGET mark through registration with the USPTO and continuous use in commerce since 1962.

Respondent’s <target-xxx.com> domain name is confusingly similar to Complainant’s TARGET mark because the disputed domain name incorporates Complainant’s entire mark and adds a hyphen and the letters “xxx” to the end of the mark. Neither the addition of the hyphen nor the letters “xxx” sufficiently differentiate Respondent’s domain name from Complainant’s mark because the mark remains the principal element of the domain name. Thus, the Panel finds that the <target-xxx.com> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i). See Chernow Communications 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 Am. Online, Inc. v. Fu, D2000-1374 (WIPO Dec. 11, 2000) (finding that adding the suffixes "502" and "520" to the ICQ trademark does little to reduce the potential for confusion).

The Panel finds that Complainant has established Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Respondent has failed to come forward and challenge the allegations of the Complaint. Therefore, the Panel accepts all of Complainant’s reasonable allegations and inferences to be true. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that Respondent’s failure to respond allows all reasonable inferences of fact in the allegations of Complainant to be deemed true); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that Complainant’s allegations are true unless clearly contradicted by the evidence).

Moreover, the Panel is permitted to draw inferences from the very fact that Respondent has failed to respond. Based on Respondent’s failure to respond, the Panel presumes that Respondent lacks any rights to or legitimate interests in the disputed domain name for purposes of Policy ¶ 4(a)(ii). See Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that Respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that Respondent has no rights or legitimate interests in the domain name because Respondent never submitted a response or provided the Panel with evidence to suggest otherwise).

Respondent is using the <target-xxx.com> domain name to divert Internet users to what appears to be a pornographic website. The use of a domain name confusingly similar to a registered trademark to divert Internet traffic to a pornographic website is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See ABB Asea Brown Boveri Ltd. v. Quicknet, D2003-0215 (WIPO May 26, 2003) (finding that the use of the disputed domain name in connection with pornographic images and links “tarnishes and dilutes” Complainant’s mark and was evidence that Respondent had no rights or legitimate interests in the disputed domain name); see also McClatchy Mgmt. Serv., Inc. v. Carrington a/k/a Party Night Inc., FA 155902 (Nat. Arb. Forum June 2, 2003) (holding that Respondent’s use of the disputed domain names to divert Internet users to a website that features pornographic material, had been “consistently held” to be neither a bona fide offering of goods or services . . . nor a legitimate noncommercial or fair use).

Furthermore, the record provides no evidence that Respondent is commonly known by either TARGET-XXX or <target-xxx.com>. Thus, Respondent has failed to establish any rights to or legitimate interests in the disputed domain name with regard to Policy ¶ 4(c)(ii). See RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail"); 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 Complainant has established Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

Respondent is using the <target-xxx.com> domain name to redirect Internet traffic to what appears to be a pornographic website. The use of a domain name confusingly similar to a trademark holder’s mark to divert Internet users to a pornographic website demonstrates bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See CCA Indus., Inc. v. Dailey, D2000-0148 (WIPO Apr. 26, 2000) (finding that “this association with a pornographic web site can itself constitute bad faith”); see also Wells Fargo & Co. v. Party Night Inc. & Peter Carrington, FA 144647 (Nat. Arb. Forum March 18, 2003) (finding that Respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith).

Moreover, the Panel infers that Respondent diverts Internet traffic to pornographic websites to garner monetary profit from such users’ inadvertent arrival at said websites. Respondent’s use of the disputed domain name indicates that Respondent intends to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant’s TARGET mark, which evidences bad faith registration and use under Policy ¶ 4(b)(iv). 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 Complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where Respondent linked <drmath.com>, which contains Complainant’s Dr. Math mark, to a website run by Respondent, creating confusion for Internet users regarding the endorsement, sponsorship, of affiliation of the website).

The Panel finds that Policy ¶ 4(a)(iii) has been established.

DECISION

Having established all three elements required under ICANN Policy, the Panel concludes that relief shall be GRANTED.

Accordingly, it is Ordered that the <target-xxx.com> domain name be TRANSFERRED from Respondent to Complainant.

The Honorable Charles K. McCotter, Jr. (Ret.), Panelist

Dated:  August 13, 2003

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