NATIONAL ARBITRATION FORUM

DECISION

Béis, LLC v. Cary Nedd / CaryNedd

Claim Number: FA2507002168955

PARTIES

Complainant is Béis, LLC ("Complainant"), represented by Susan Stabe of Kutak Rock, California, USA. Respondent is Cary Nedd / CaryNedd ("Respondent"), Indiana, USA.

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <bies.live>, registered with NameCheap, 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.

Debrett G. Lyons as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on July 31, 2025; Forum received payment on July 31, 2025.

On August 1, 2025, NameCheap, Inc. confirmed by e-mail to Forum that the <bies.live> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 August 4, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 25, 2025 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@bies.live. Also on August 4, 2025, 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, Forum transmitted to the parties a Notification of Respondent Default.

On August 26, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Debrett G. Lyons as Panelist.

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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

Complainant asserts registered and common law rights in BÉIS and BÉIS-formative trademarks which it uses in relation to luggage and travel goods. Complainant submits that the disputed domain name is nearly identical and confusingly similar to its trademarks and its domain name.

Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name because it has no trademark rights, is not known by the same name and has not been authorized to use the trademarks.

Complainant alleges that Respondent registered and used the disputed domain name in bad faith having targeted Complainant and its trademarks.

In particular, Complainant argues that Respondent misrepresents itself as Complainant by way of a website resolving from the domain name which uses the trademarks without permission and which appears to offer for sale travel goods identical to those offered by Complainant, or operates to fraudulently obtain payment for such goods by deception where none are available.

B. Respondent

Respondent failed to submit a Response in this proceeding.

FINDINGS

The factual findings pertinent to the decision in this case are that:

1. Complainant sells luggage and travel goods by reference to the trademark BÉIS;

2. the disputed domain name was registered on May 28, 2025, using a privacy service to shield the name of Respondent; and

3. Respondent disclosed by the Registrar has used the disputed domain name to resolve to a website offering luggage and travel goods which uses the BÉIS trademark and language and images that appear to have been copied directly from Complainant's website.

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."

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.

Identical and/or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.

Paragraph 4(a)(i) does not distinguish between registered and unregistered trademark rights (see, for example, Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017). As stated above, Complainant asserts registered and common law rights in BÉIS and BÉIS-formative trademarks. There is no proof of common law rights, but it is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). However, there is no direct proof of registered trademark rights by way of certificates of registration or official register extracts. Instead, what is exhibited to the report is a so-called "Beis, LLC TM Portfolio Report" from what appears to be an internal records system. Such a document does not establish trademark rights.

It has been said in numerous UDRP decisions that proof of trademark rights is a threshold issue under the Policy and so another panelist may have dismissed the Complaint at this point. However, the Panel has taken the added steps of referencing national trademark office records, identifying what might be described as a foundation registration in the form of United States Patent and Trademark Office Reg. No. 7,213,755 for the mark BÉIS, registered on November 7, 2023, and standing in the name of Complainant. The Panel therefore finds proof of trademark rights in BÉIS, adding that it has for the purpose of the following comparison disregarded the BÉIS formative marks in which Complainant asserts rights since they present weaker cases.

Complainant's submission is that the disputed domain name is nearly identical and confusingly similar to its trademarks and its domain name. Comparison with Complainant's domain name is not relevant. Furthermore, near identity is not the language of the Policy and since the domain name is not identical to the trademark, the only question is that of confusing similarity.

For the purposes of comparison, the gTLD, ".live", can be disregarded. Mistaken order of the letters, "e" and "i", in English language dipthongs is a most common error. Visually the difference is trivial. On any assessment, the trademark remains recognizable (see, for example, Morgan Stanley v. Morgan Stanley, FA 1169733 (Forum May 3, 2008) finding addition of a gTLD irrelevant for the purposes of comparison; United Parcel Service of America, Inc. v. hottie hottie, FA 2160527 (Forum July 10, 2025) finding <theupsstoree.com> and <theupstoree.com> confusingly similar to the complainant's THE UPS STORE mark).

The Panel finds the disputed domain name to be confusingly similar to the trademark and so finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.

Rights or Legitimate Interests

Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:

(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).

The name of Respondent was shielded by a privacy service. Once revealed in consequence of these proceedings, nothing indicated that Respondent might be commonly known by the domain name (see, for example, Tercent Inc. v. Lee Yi, FA 0139720 (Forum Feb. 10, 2003) stating "nothing in [the respondent's] WHOIS information implies that [the respondent] is 'commonly known by' the disputed domain name" as one factor in determining that Policy ¶ 4(c)(ii) does not apply.").

There is no evidence that Respondent has any trademark rights. Complainant states that there is no association between the parties. Further, no rights or legitimate interests can accrue by reason of use of the domain name to resolve to a website posing as that of Complainant. There is clearly no non-commercial or fair use of the domain name (see, for example, Am. Int'l Group,Inc. v. Busby, FA 156251 (Forum May 30, 2003) ("In effect, Respondent attempted to pass itself off as Complainant online. Such blatant unauthorized use of Complainant's mark is evidence that Respondent has no rights or legitimate interests in the disputed domain name.")).

A prima facie case has been made. The onus shifts to Respondent and in the absence of a Response, Panel finds that Respondent has no rights or interests and so finds that Complainant has satisfied the second limb of the Policy.

Registration and Use in Bad Faith

Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.

Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.

The four specified circumstances are:

'(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or

(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or

(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent's website or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of the respondent's website or location or of a product or service on the site or location.'

The Panel agrees with Complainant's submission that Respondent's conduct is caught by paragraph 4(b)(iv) above. The Panel has already found the disputed domain name to be confusingly similar to the trademark. The use of the domain name is for commercial gain. In terms of the Policy, the Panel finds that Respondent has used the disputed domain name to attract, for commercial gain, internet users to its website by creating a likelihood of confusion with Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of that website (see, for example, Charter Communications Holding Company, LLC v. Webdesk Two, FA 1800636 (Forum Sept. 5, 2018) finding bad faith in registration of <spectrumpack.com> because "[u]se of a domain name to create a false impression of affiliation with a complainant in order to compete with and disrupt the complainant's business is behavior indicative of bad faith registration and use per Policy ¶¶ 4(b)(iii) and (iv).").

The Panel finds that Complainant has satisfied the third and final element of the Policy.

DECISION

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

Accordingly, it is Ordered that the <bies.live> domain name be TRANSFERRED from Respondent to Complainant.

Debrett G. Lyons, Panelist

Dated: August 27, 2025