Bed Bath & Beyond Procurement CO. Inc. v. Domain Admin / Taranga Services Pty Ltd
Claim Number: FA1203001434599
Complainant is Bed Bath & Beyond Procurement CO. Inc. (“Complainant”), New York, USA. Respondent is Domain Admin / Taranga Services Pty Ltd (“Respondent”), New Zealand.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bdbathbeyond.com>, <bebbathandbeyond.com>, <bedbatbeyond.com>, <bedbathadbeyond.com>, <bedbathadnbeyond.com>, <bedbathandbayond.com>, <bedbathandbeynod.com>, <bedbathandbeyod.com>, <bedbathandbeyoond.com>, <bedbathandbyeond.com>, <bedbathanndbeyond.com>, <bedbathanybeyond.com>, <bedbathbeyod.com>, and <bedbeathandbeyond.com>, registered with Moniker Online Services Llc, Moniker.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 14, 2012; the National Arbitration Forum received payment on March 14, 2012.
On March 16, 2012, Moniker Online Services Llc, Moniker confirmed by e-mail to the National Arbitration Forum that the <bdbathbeyond.com>, <bebbathandbeyond.com>, <bedbatbeyond.com>, <bedbathadbeyond.com>, <bedbathadnbeyond.com>, <bedbathandbayond.com>, <bedbathandbeynod.com>, <bedbathandbeyod.com>, <bedbathandbeyoond.com>, <bedbathandbyeond.com>, <bedbathanndbeyond.com>, <bedbathanybeyond.com>, <bedbathbeyod.com>, and <bedbeathandbeyond.com> domain names are registered with Moniker Online Services Llc, Moniker and that Respondent is the current registrant of the names. Moniker Online Services Llc, Moniker has verified that Respondent is bound by the Moniker Online Services Llc, Moniker 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 27, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 16, 2012 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@bdbathbeyond.com, postmaster@bebbathandbeyond.com, postmaster@bedbatbeyond.com, postmaster@bedbathadbeyond.com, postmaster@bedbathadnbeyond.com, postmaster@bedbathandbayond.com, postmaster@bedbathandbeynod.com, postmaster@bedbathandbeyod.com, postmaster@bedbathandbeyoond.com, postmaster@bedbathandbyeond.com, postmaster@bedbathanndbeyond.com, postmaster@bedbathanybeyond.com, postmaster@bedbathbeyod.com, and postmaster@bedbeathandbeyond.com. Also on March 27, 2012, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 23, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco, 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
Complainant contends as follows:
Complainant has registered the BED BATH & BEYOND mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,712,392 registered September 1, 1992). Respondent’s disputed domain names are confusingly similar to Complainant’s BED BATH & BEYOND mark. Respondent has engaged in typosquatting.
Respondent’s at-issue domain names resolve to a website offering links to third-party businesses, some of which compete with Complainant. Respondent is not commonly known by the disputed domain name. Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is a serial cybersquatter and has a pattern of registering infringing domain names, including Respondent’s current ownership of other domain names that infringe upon the marks of unrelated third parties.
Respondent registered and is using the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant had, and has, trademark rights in the BED BATH AND BEYOND mark at all times relevant to this proceeding. Complainant’s trademark is confusingly similar to each of Respondent’s disputed domain names.
Respondent has no authority to use Complainant’s trademark in any manner whatsoever.
Respondent is a typosquatter.
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(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.”).
Each of the at-issue domain names is confusingly similar to a trademark in which the Complainant has rights.
Complainant establishes trademark rights in its BED BATH & BEYOND mark by evidencing registration with the USPTO (e.g., Reg. No. 1,712,392 registered September 1, 1992). Therefore Complainant establishes rights in the BED BATH & BEYOND mark under Policy ¶ 4(a)(i). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (finding that the complainant had established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO); see also 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).
Each of the at-issue domain names is confusingly similar to Complainant’s BED BATH & BEYOND mark. The at-issue domain names are comprised of common misspellings of Complainant’s mark varying only by immaterial omitted letters, added letters, transposed letters, substituted letters, and letters near one another on the keyboard. The ampersand in Complainant’s mark is substituted by the word “and” in most of the at-issue domain names, while in a few the ampersand is simply removed. Each at-issue domain name uses the “com.” gTLD. It is well settled that the addition of minor and inconsequential typographical variations such as the aforementioned misspellings and predicted keying errors, as well as the addition of the gTLD, do nothing to distinguish a respondent’s domain name from a complainant’s trademark for the purposes of Paragraph 4(a)(i). Therefore the Panel concludes that each of Respondent’s domain names at-issue is confusingly similar to Complainant’s BED BATH AND BEYOND mark under. See Wright & Lato, Inc. v. Epstein, D2000-0621 (WIPO Sept. 2, 2000) (finding that the <wrightandlato.com> domain name is identical to the complainant’s WRIGHT & LATO mark, because the ampersand symbol (&) is not reproducible in a URL); see also Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”); see also Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Nat. Arb. Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”); see also Wyndham IP Corp. v. LaPorte Holdings, Inc., FA 373545 (Nat. Arb. Forum Jan. 17, 2005) (finding the <wynhdam.com> and <wyandham.com> domain names to be confusingly similar to the complainant’s WYNDHAM mark because the domain names merely transposed letters in the mark); see also Ziegenfelder Co. v. VMH Enters., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding confusing similarity between the respondent’s domain name, <budgetsaver.com> and the complainant’s mark, BUDGET$AVER); 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).
Respondent lacks rights or interests in respect of the domain name.
Under Policy ¶ 4(a)(ii) Complainant must first make out a prima facie case that Respondent lacks rights and legitimate interests in the at-issue domain name (or each of them where more than one domain is at‑issue) and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights and legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since there was no response to the Complaint, Complainant’s prima facie case will be conclusive.
Complainant shows that Respondent is not commonly known by any of the at‑issue domain names. WHOIS information identifies the registrant of the at‑issue domain names as “Domain Admin / Taranga Services Pty Ltd.” Therefore, the Respondent is not commonly known by the domain names under Policy ¶ 4(c)(ii). See 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).
Respondent is not making a bona fide offering of goods or services or a legitimate noncommercial or fair use of any of the disputed domain names. Complainant demonstrates that each at-issue domain name resolve to directory websites offering links to third parties. Many of the links offered at Respondent' websites resolve to Complainant’s competitors. Use of a confusingly similar domain name in such a manner does not qualify as a bona fide offering of goods or services or a legitimate noncommercial or fair use. See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with 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 also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was 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)). Respondent thus is not making a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate or a noncommercial fair use of the disputed domain names under Policy ¶ 4(c)(iii).
Respondent is typosquatting. The at-issue domain names: <bdbathbeyond.com>, <bebbathandbeyond.com>, <bedbatbeyond.com>, <bedbathadbeyond.com>, <bedbathadnbeyond.com>, <bedbathandbayond.com>, <bedbathandbeynod.com>, <bedbathandbeyod.com>, <bedbathandbeyoond.com>, <bedbathandbyeond.com>, <bedbathanndbeyond.com>, <bedbathanybeyond.com>, <bedbathbeyod.com>, and <bedbeathandbeyond.com> each include an infringing derivative of Complainant’s mark. Each merely adds, deletes, or transposes letters to anticipate an expected browser keying error concerning Complainant’s BED BATH & BEYOND trademark. Respondent attempts to commercially gain from one or more common spelling or keying errors which Internet users may make when typing Complainant’s mark into a browser’s address window. Respondent’s conduct further supports a finding that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”).
Given the forgoing and without any controverting evidence before the Panel, Complainant well satisfies its initial burden thereby conclusively demonstrating Respondent’s lack of rights and interests in the disputed domain name.
Respondent registered and uses each of the at-issue domain names in bad faith.
Respondent is a serial cybersquatter who has been a respondent in multiple UDRP proceedings. Respondent concurrently registered multiple domain names similar to Complainant’s mark to impermissibly capitalize on Internet user keying errors and has likewise registered many other domain names that infringe upon the trademark rights of third parties unrelated to the instant proceedings. Complainant submits the WHOIS records for those other domains to verify its arguments. Thereby Respondent establishes a pattern of infringing domain registrations supporting a finding of bad faith registration and use under Policy ¶ 4(b)(ii). See Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants); see also Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)).
Respondent registered and is also using the at-issue domain name for commercial gain. Respondent’s domain names resolve to websites offering a list of links, some of which resolve to Complainant’s competitors. Respondent promotes these websites in the hope that Internet users will inadvertently arrive at one of Respondent’s websites and then click on one of the displayed links and thereby generate revenue via click-through fees. The circumstance here show Respondent has registered and uses the at-issue domain names in bad faith under Policy ¶ 4(b)(iv). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iv) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) (“Respondent is using the disputed domain name to operate a website which features links to competing and non-competing commercial websites from which Respondent presumably receives referral fees. Such use for Respondent’s own commercial gain is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”)
Finally, as mention above, Respondent’s registration of the at‑issue domain names demonstrates a classic attempt at typosquatting. Each of the at-issue domain names includes some variant of a likely keying error pertaining to Complainant’s BED BATH & BEYOND mark. Therefore, Respondent has engaged in typosquatting, which further supports a finding of bad faith registration and use under Policy ¶ 4(a)(iii). See Vanguard Group, Inc. v. IQ Mgmt. Corp., FA 328127 (Nat. Arb. Forum Oct. 28, 2004) (“By engaging in typosquatting, [r]espondent has registered and used the <vangard.com> domain name in bad faith pursuant to 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 <bdbathbeyond.com>, <bebbathandbeyond.com>, <bedbatbeyond.com>, <bedbathadbeyond.com>, <bedbathadnbeyond.com>, <bedbathandbayond.com>, <bedbathandbeynod.com>, <bedbathandbeyod.com>, <bedbathandbeyoond.com>, <bedbathandbyeond.com>, <bedbathanndbeyond.com>, <bedbathanybeyond.com>, <bedbathbeyod.com>, and <bedbeathandbeyond.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 27, 2012
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