Vera Bradley, Inc. v. PPA Media Services / Ryan G Foo
Claim Number: FA1308001516883
Complainant is Vera Bradley, Inc. (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is PPA Media Services / Ryan G Foo (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <virabradley.com>, registered with Internet.bs Corp.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 28, 2013; the National Arbitration Forum received payment on August 28, 2013.
On September 18, 2013, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <virabradley.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 September 18, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 8, 2013 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@virabradley.com. Also on September 18, 2013, 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 October 10, 2013, 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, Vera Bradley, Inc. is a leading designer, producer, marketer, and retailer of stylish, highly functional accessories for women. Complainant is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the VERA BRADLEY mark (e.g., Reg. No. 1,745,799, registered January 12, 1993).
The at-issue domain name is confusingly similar to Complainant’s mark because it differs by only a single character from Complainant’s mark. Respondent has no rights or legitimate interests in respect of the domain name. Respondent has not been commonly known by the domain name. Respondent is using the domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business.
Respondent has registered and is using the at-issue domain name in bad faith. Respondent is a recalcitrant, serial cybersquatter. Respondent’s advertised pay-per-click links displayed on the resolving websites promote products that compete with Complainant. Respondent registered and used the at-issue domain name in bad faith by using the domain name to attract and mislead consumers for its own profit. Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith.
The earliest date on which Respondent registered the disputed domain name was January 18, 2009.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the VERA BRADLEY mark through its registration with the USPTO.
Respondent is not authorized to use Complainant’s trademark in any capacity.
Respondent registered the at-issue domain name after Complainant acquired rights in its VERA BRADLEY mark.
The at-issue domain name contains a common misspelling of Complainant’s trademark.
Respondent uses the <virabradley.com> domain name to address a website featuring generic links to third-party websites, some of which directly compete with Complainant’s 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."
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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the VERA BRADLEY mark with the USPTO establishes Complainant’s rights in a mark for the purposes of the Policy. This is true notwithstanding that Respondent may operate outside the jurisdiction of the trademark’s registrar. See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).”); see also Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).”).
Complainant’s VERA BRADLEY mark differs by only a single character from Complainant’s trademark. Respondent deletes the space between the mark’s terms, replaces the letter “e” in VERA with the letter an “i,” and then appends the top level “.com” to form the at-issue domain name. Respondent’s substitution of the letter “e” is inconsequential under Policy ¶ 4(a)(i) analysis as is the removal of the space and addition of the necessary top level domain name. Therefore, the Panel concludes that Respondent’s <virabradley.com> domain name is confusingly similar to Complainant’s VERA BRADLEY trademark. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also U.S. News & World Report, Inc. v. Zhongqi, FA 917070 (Nat. Arb. Forum Apr. 9, 2007) (“Elimination of punctuation and the space between the words of Complainant’s mark, as well as the addition of a gTLD does not sufficiently distinguish the disputed domain name from the mark pursuant to Policy ¶ 4(a)(i).”).
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the domain name.
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond and since as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.
WHOIS information identifies “PPA Media Services / Ryan G Foo” as the at-issue domain name’s registrant. Moreover, the record before the Panel contains no evidence that suggests Respondent is otherwise commonly known by the domain name. The Panel thus concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Respondent uses the <virabradley.com> domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. The website’s links included “Vera Bradley,” “Vera Bradley Outlet,” “Tote Bags for less,” and others. Respondent undoubtedly intends to receive pay-per-click fees from these linked websites or from an Internet advertising intermediary. Such use of the at-issue domain name is neither a bona fide offering of goods or services under Policy ¶¶ 4(c)(i), nor a legitimate noncommercial or fair use of the at-issue domain name under Policy ¶¶ 4(c)(iii). See United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) (“The disputed domain name, <usaa-insurance.net>, currently resolves to a website displaying Complainant’s marks and contains links to Complainant’s competitors.
The at‑issue domain name was registered and used in bad faith. As discussed below, Policy ¶ 4(b) circumstance are present as well as other circumstances which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
Respondent is a recalcitrant, serial cybersquatter. NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of bad faith registration of domain names. See Exhibit N: Klein Tools, Inc. v. PPA Media Services / Ryan G Foo, FA 1497397 (Nat. Arb. Forum June 19, 2013); ER Marks, Inc. and QVC, Inc. v. PPA Media Services / Ryan G Foo, FA 1496727 (Nat. Arb. Forum June 24, 2013); AutoZone Parts, Inc. v. PPA Media Services / Ryan G Foo, FA 1497170 (Nat. Arb. Forum June 16, 2013). Respondent’s multiple prior adverse UDRP decisions suggests bad faith registration and use in the instant proceeding under Policy ¶ 4(b)(ii). See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations).
Furthermore as mentioned above, the pay-per-click links displayed on Respondent’s website promote products that compete with Complainant. Using the confusingly similar <virabradley.com> domain name Respondent intends that these links divert potential customers away from Complainant to third-party websites. The diversion disrupts Complainant’s business and using the domain name in this manner demonstrates Respondent’s bad faith registration and use of <virabradley.com> pursuant to Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008), (finding that using the disputed domain names addressed websites that listed links to competitors of Complainant, evidence that Respondent intended to disrupt Complainant’s business).
It is also apparent that Respondent registered and used the confusingly similar <virabradley.com> domain name to attract and mislead consumers. Respondent ultimately intends to receive revenue for each misdirected user that finds his or her way to the <virabradley.com> website and clicks on one of its links. These circumstances demonstrate Respondent’s bad faith under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Furthermore, Respondent engages in typosquatting. Typosquatting consists of registering, as part of a domain name, a subtle misspelling or mistyping of a targeted trademark in order to capitalize on anticipated corresponding errors made by Internet users desiring to find trademarked goods or services. Here, Respondent simply substitutes the letter “e” in VERA with an “i,” a common misspelling of VERA. Typosquatting is, in and of itself, evidence of bad faith under Policy ¶4(a)(iii). See, e.g., Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use 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 <virabradley.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: October 16, 2013
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page