Bed Bath & Beyond Procurement Co. Inc. (N/K/A Liberty Procurement Co. Inc.) v. PPA Media Services / Ryan G Foo
Claim Number: FA1307001510619
Complainant is Bed Bath & Beyond Procurement Co. Inc. (N/K/A Liberty Procurement Co. Inc.) (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is PPA Media Services / Ryan G Foo (“Respondent”), Chile.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <badbathandbeyond.com>, <bedandbeyond.com>, <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathabdbeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandbeyind.com>, <bedbathandbeyondcoupons.com>, <bedbathandeyond.com>, <bedbathanebeyond.com>, <bedbathbeond.com>, <bedbathebeyond.com>, <bedbathhandbeyond.com>, <bedbathybeyond.com>, <beddathbeyond.com>, <beedbathandbeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <buybuybbay.com>, <combedbathandbeyond.com>, and <dedbathandbeyond.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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 19, 2013; the National Arbitration Forum received payment on July 19, 2013.
On August 28, 2013, Internet.Bs Corp. confirmed by e-mail to the National Arbitration Forum that the <badbathandbeyond.com>, <bedandbeyond.com>, <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathabdbeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandbeyind.com>, <bedbathandbeyondcoupons.com>, <bedbathandeyond.com>, <bedbathanebeyond.com>, <bedbathbeond.com>, <bedbathebeyond.com>, <bedbathhandbeyond.com>, <bedbathybeyond.com>, <beddathbeyond.com>, <beedbathandbeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <buybuybbay.com>, <combedbathandbeyond.com>, and <dedbathandbeyond.com> domain names are registered with Internet.Bs Corp. and that Respondent is the current registrant of the names. 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 6, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 26, 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@badbathandbeyond.com, postmaster@bedandbeyond.com, postmaster@bedbadthandbeyond.com, postmaster@bedbasthandbeyond.com, postmaster@bedbatchandbeyond.com, postmaster@bedbathaandbeyond.com, postmaster@bedbathabdbeyond.com, postmaster@bedbathanbeyond.com, postmaster@bedbathandbeond.com, postmaster@bedbathandbeyind.com, postmaster@bedbathandbeyondcoupons.com, postmaster@bedbathandeyond.com, postmaster@bedbathanebeyond.com, postmaster@bedbathbeond.com, postmaster@bedbathebeyond.com, postmaster@bedbathhandbeyond.com, postmaster@bedbathybeyond.com, postmaster@beddathbeyond.com, postmaster@beedbathandbeyond.com, postmaster@benbathandbeyond.com, postmaster@besbathandbeyond.com, postmaster@buybuybbay.com, postmaster@combedbathandbeyond.com, postmaster@dedbathandbeyond.com. Also on September 6, 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 2, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <badbathandbeyond.com>, <bedandbeyond.com>, <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathabdbeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandbeyind.com>, <bedbathandbeyondcoupons.com>, <bedbathandeyond.com>, <bedbathanebeyond.com>, <bedbathbeond.com>, <bedbathebeyond.com>, <bedbathhandbeyond.com>, <bedbathybeyond.com>, <beddathbeyond.com>, <beedbathandbeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <buybuybbay.com>, <combedbathandbeyond.com>, and <dedbathandbeyond.com> domain names, the domain names at issue, are confusingly similar to Complainant’s BED BATH & BEYOND mark.
2. Respondent does not have any rights or legitimate interests in the domain names at issue.
3. Respondent registered and used the domain names at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Bed Bath & Beyond Procurement Co. Inc., is a wholly owned subsidiary of Bed Bath & Beyond Inc., which operates over nine hundred domestic merchandise retail stores across North America. Through registrations with the United States Patent and Trademark Office (“USPTO”), Complainant owns rights in the BED BATH & BEYOND mark (e.g., Reg. No. 1,712,392 registered September 1, 1992) and the BUY BUY BABY mark (e.g., Reg. No. 2,171,479 registered July 7, 1998).
The <badbathandbeyond.com>, <bedandbeyond.com>, <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathabdbeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandbeyind.com>, <bedbathandbeyondcoupons.com>, <bedbathandeyond.com>, <bedbathanebeyond.com>, <bedbathbeond.com>, <bedbathebeyond.com>, <bedbathhandbeyond.com>, <bedbathybeyond.com>, <beddathbeyond.com>, <beedbathandbeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <combedbathandbeyond.com>, and <dedbathandbeyond.com> domain names at issue are confusingly similar to Complainant’s BED BATH & BEYOND mark. Each of these twenty-three domain names either:
i. Fully incorporates the BED BATH & BEYOND mark while merely adding a generic term such as “com” or “coupons;”
ii. Differs from the BED BATH & BEYOND mark by a single character: by adding a letter, eliminating a letter, or slightly misspelling the mark; or
iii. Fully incorporates Complainant’s BED BATH & BEYOND mark, except for the word “bath;”
The <buybuybbay.com> domain name is confusingly similar to Complainant’s BUY BUY BABY mark.
Respondent is not commonly known by the domain names at issue, because the WHOIS information identifies the registrant of the disputed domain names as “PPA Media Services / Ryan G Foo,” and Complainant has not authorized Respondent to use any of its marks in a domain name. Respondent’s use of the disputed domain names does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy, because all of the disputed domain names resolve to websites hosting generic links to third-party websites, some of which directly compete with Complainant’s domestic merchandise business.
Respondent has also demonstrated a pattern and practice of bad faith domain name registration, which is demonstrated by numerous adverse UDRP proceedings against Respondent and by the fact that the instant case involves twenty-four domain names that infringe on Complainant’s marks. Because the websites resolving from most of the disputed domain names host links to third parties that directly compete with Complainant, Respondent is diverting potential customers away from Complainant and toward Complainant’s competitors. Therefore, Respondent has demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iii). Respondent is presumably profiting in the form of click-through fees from its registration and use of the disputed domain names, because all of the disputed domain names resolve to websites that promote various generic links to third-party websites. Moreover, all of the disputed domain names are confusingly similar to Complainant’s BED BATH & BEYOND or BUY BUY BABY mark, and are thus likely to mislead Internet users seeking products provided under those marks. Respondent has thus demonstrated bad faith registration and use of the disputed domain names pursuant to Policy ¶ 4(b)(iv). By registering as many as twenty-one domain names that are typographical errors of Complainant’s BED BATH & BEYOND or BUY BUY BABY marks, Respondent has engaged in typosquatting, which further evidences Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). The earliest date on which Respondent registered any of the twenty-four disputed domain names was August 23, 2000.
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 <badbathandbeyond.com>, <bedandbeyond.com>, <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathabdbeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandbeyind.com>, <bedbathandbeyondcoupons.com>, <bedbathandeyond.com>, <bedbathanebeyond.com>, <bedbathbeond.com>, <bedbathebeyond.com>, <bedbathhandbeyond.com>, <bedbathybeyond.com>, <beddathbeyond.com>, <beedbathandbeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <combedbathandbeyond.com>, and <dedbathandbeyond.com> domain names are confusingly similar to Complainant’s BED BATH & BEYOND mark. All of these disputed domain names eliminate the spaces found in the BED BATH & BEYOND mark and also add the generic top-level domain (“gTLD”) “.com.” It has previously been determined that a disputed domain name’s elimination of spaces and addition of a gTLD such as “.com” does not sufficiently distinguish the domain name from a complainant’s mark under the Policy. See, e.g., Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). None of these disputed domain names reproduce the ampersand (&) symbol found in the BED BATH & BEYOND mark. However, a domain name’s elimination of an ampersand or the replacement of an ampersand with the word “and” does not sufficiently distinguish the domain name from a complainant’s mark. See McKinsey Holdings, Inc. v. Indidom, D2000-1616 (WIPO Jan. 31, 2001) (finding that the removal of the ampersand from “McKinsey & Company” does not affect the user’s understanding of the domain name, and therefore the domain name <mckinseycompany.com> is identical and/or confusingly similar to the mark “McKinsey & Company”); see also 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). Furthermore, a domain name that differs from a mark by only one letter is likely to be confusingly similar to the mark: whether the difference is in the form of adding a letter, eliminating a letter, or slightly misspelling the mark. See Reuters Ltd. v. Global Net 2000, Inc., D2000-0441 (WIPO July 13, 2000) (finding that a domain name which differs by only one letter from a trademark has a greater tendency to be confusingly similar to the trademark where the trademark is highly distinctive); 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).”); Myspace, Inc. v. Kang, FA 672160 (Nat. Arb. Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity); Royal Bank of Scotland Grp. plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (“The Panel finds that merely by misspelling Complainants’ mark, Respondent has not sufficiently differentiated the <privelage.com> domain name from the PRIVILEGE mark under Policy ¶ 4(a)(i).”). In the instant proceedings, the <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathhandbeyond.com>, <beedbathandbeyond.com>, <bedbathebeyond.com>, and <bedbathybeyond.com> domain names merely insert an additional character to Complainant’s BED BATH & BEYOND mark (an extra “d,” “s,” “c,” “a,” “h,” “e,” “e,” and “y,” respectively). Similarly, the <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandeyond.com>, and <bedbathbeond.com> domain names merely eliminate one letter from the BED BATH & BEYOND mark (eliminating a “d,” “y,” “b,” and “y,” respectively). The <badbathandbeyond.com>, <bedbathabdbeyond.com>, <bedbathandbeyind.com>, <bedbathanebeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <dedbathandbeyond.com>, and <beddathbeyond.com> domain names misspell the BED BATH & BEYOND mark by a single character. For the foregoing reasons, the Panel holds that the bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathhandbeyond.com>, <beedbathandbeyond.com>, <bedbathebeyond.com>, <bedbathybeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandeyond.com>, <bedbathbeond.com>, <badbathandbeyond.com>, <bedbathabdbeyond.com>, <bedbathandbeyind.com>, <bedbathanebeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <dedbathandbeyond.com>, and <beddathbeyond.com> domain names are confusingly similar to Complainant’s BED BATH & BEYOND mark under Policy ¶ 4(a)(i). In addition, a domain name that incorporates a complainant’s mark but eliminates one of the words in the mark is confusingly similar to the mark under the Policy. See, e.g., Wellness Int’l Network, LTD v. Apostolics.com, FA 96189 (Nat. Arb. Forum Jan. 16, 2001) (finding that the domain name <wellness-international.com> is confusingly similar to the complainant’s WELLNESS INTERNATIONAL NETWORK). The Panel notes that, as in Wellness Int’l Network, supra, the <bedandbeyond.com> domain name fully incorporates the BED BATH & BEYOND mark while merely eliminating the word “bath.” Accordingly, the <bedandbeyond.com> domain name is confusingly similar to Complainant’s BED BATH & BEYOND mark under Policy ¶ 4(a)(i). Finally, it has previously been determined that a domain name that fully incorporates a complainant’s mark while adding a generic term is not sufficiently distinct from a complainant’s mark. See, e.g., Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)). The disputed <bedbathandbeyondcoupons.com> and <combedbathandbeyond.com> domain names fully incorporate Complainant’s BED BATH & BEYOND mark while merely adding the generic terms “coupons” and “com.” Accordingly, the <bedbathandbeyondcoupons.com> and <combedbathandbeyond.com> domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Finally, the <buybuybbay.com> domain name is confusingly similar to Complainant’s BUY BUY BABY mark. The <buybuybbay.com> domain name eliminates the spaces found between words in the BUY BUY BABY mark and also adds the gTLD “.com.” However, previous panels have held that a disputed domain name’s elimination of spaces and addition of a gTLD such as “.com” does not sufficiently distinguish the domain name from a complainant’s mark under the Policy. See, e.g., Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) (finding that the elimination of spaces between terms and the addition of a gTLD do not establish distinctiveness from the complainant’s mark under Policy ¶ 4(a)(i)). Additionally, a domain name that merely transposes two letters in a Complainant’s mark is confusingly similar to the mark pursuant to the Policy. See Google Inc. v. Jon G., FA 106084 (Nat. Arb. Forum Apr. 26, 2002) (finding <googel.com> to be confusingly similar to the 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”). The <buybuybbay.com> domain name is identical to Complainant’s BUY BUY BABY mark except for the transposition of the letters “b” and “a” found in the word “BABY.” Therefore, the <buybuybbay.com> domain name is confusingly similar to Complainant’s BUY BUY BABY mark under Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Respondent is not commonly known as <badbathandbeyond.com>, <bedandbeyond.com>, <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathabdbeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandbeyind.com>, <bedbathandbeyondcoupons.com>, <bedbathandeyond.com>, <bedbathanebeyond.com>, <bedbathbeond.com>, <bedbathebeyond.com>, <bedbathhandbeyond.com>, <bedbathybeyond.com>, <beddathbeyond.com>, <beedbathandbeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <buybuybbay.com>, <combedbathandbeyond.com>, or <dedbathandbeyond.com>, because the WHOIS information identifies the registrant of the disputed domain names as “PPA Media Services / Ryan G Foo,” and Complainant has not authorized Respondent to use any of its marks in a domain name. In Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006), the panel held that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark. In the instant proceedings, as in Braun Corp., supra, the WHOIS information suggests Respondent is known by a name other than the disputed domain names, and Complainant has not authorized Respondent to use its BED BATH & BEYOND or BUY BUY BABY marks in a domain name. No other evidence in the record suggests that Respondent is commonly known as <badbathandbeyond.com>, <bedandbeyond.com>, <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathabdbeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandbeyind.com>, <bedbathandbeyondcoupons.com>, <bedbathandeyond.com>, <bedbathanebeyond.com>, <bedbathbeond.com>, <bedbathebeyond.com>, <bedbathhandbeyond.com>, <bedbathybeyond.com>, <beddathbeyond.com>, <beedbathandbeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <buybuybbay.com>, <combedbathandbeyond.com>, or <dedbathandbeyond.com>, and thus Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii).
Respondent’s use of the disputed domain names does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) because all of the disputed domain names resolve to websites hosting generic links to third-party websites, some of which directly compete with Complainant’s domestic merchandise business. Previous panels have determined that the use of a disputed domain name to promote hyperlinks that are either related or unrelated to the complainant’s business is not a use that is protected under Policy ¶¶ 4(c)(i) or (iii). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Nat. Arb. Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant). In the instant proceedings, screenshots provided by Complainant demonstrate that the disputed domain names’ resolving websites promote hyperlinks to numerous third parties, some of which directly compete with Complainant. Therefore, Respondent’s use of the disputed domain names is not a use protected as a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent has demonstrated a pattern and practice of bad faith domain name registration, which is shown by several adverse UDRP proceedings against Respondent and by the fact that the instant case involves twenty-four domain names that infringe on Complainant’s marks. Complainant has attached three adverse UDRP decisions that have found against Respondent: Homer TLC, Inc. v. PPA Media Servs. / Foo, FA 1416637 (Nat. Arb. Forum Jan. 13, 2012); Ashley Furniture Indus., Inc. v. PPA Media Servs. / Foo, FA 1470078 (Nat. Arb. Forum Dec. 31, 2012); Google Inc. v. PPA Media Servs. / Foo, FA 1468207 (Nat. Arb. Forum Dec. 12, 2012). It has previously been determined that a respondent demonstrates bad faith pursuant to Policy ¶ 4(b)(ii) by registering multiple domain names that are subject to the same adverse UDRP proceedings. See, e.g., Yahoo! Inc. v. Deiana, FA 339579 (Nat. Arb. Forum Nov. 22, 2004) (“It is found and determined that Respondent is in violation of Policy ¶ 4(b)(ii) because Respondent registered the disputed domain names to prevent Complainant from reflecting its YAHOO! mark in the corresponding domain names. The registration of the [<ayhooo.com>, <ayhooo.net >, <ayhooo.org>, <ayhoooindia.com>, <ayhoookids.com>, <ayhooorealty.com>, <ayhooorealty.net>, <ayhoooshopping.com>, <ayhooo-uk.com>, and <searchayhooo.com>] domain names herein constitutes a pattern of registering trademark-related domain names in bad faith.”). Similarly, the fact that there are multiple prior UDRP proceedings finding against a respondent has also been found to demonstrate the respondent’s bad faith pursuant to Policy ¶ 4(b)(ii). See, e.g., TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Nat. Arb. Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”). In the instant proceeding, Respondent has registered twenty-four domain names that can reasonably be found to infringe on Complainant’s BED BATH & BEYOND and BUY BUY BABY marks, which is greater than the number of disputed domain names in Yahoo!, supra. Furthermore, three prior UDRP proceedings that have found against Respondent “Ryan Foo / PPA Media Services.” Accordingly, the Panel finds that Respondent has demonstrated a pattern and practice of bad faith domain name registration, which tends to show that Respondent registered the <badbathandbeyond.com>, <bedandbeyond.com>, <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathabdbeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandbeyind.com>, <bedbathandbeyondcoupons.com>, <bedbathandeyond.com>, <bedbathanebeyond.com>, <bedbathbeond.com>, <bedbathebeyond.com>, <bedbathhandbeyond.com>, <bedbathybeyond.com>, <beddathbeyond.com>, <beedbathandbeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <buybuybbay.com>, <combedbathandbeyond.com>, and <dedbathandbeyond.com> domain names in bad faith pursuant to Policy ¶ 4(b)(ii).
Further, Respondent has demonstrated bad faith registration and use of the disputed domain names pursuant to Policy ¶ 4(b)(iii). The websites resolving from most of the disputed domain names host links to third parties that directly compete with Complainant, and thus divert potential customers of Complainant away from Complainant and toward Complainant’s competitors. According to screenshots provided by Complainant, many of the disputed domain names resolve to websites that contain links to Complainant’s competitors in the domestic merchandise business, including Target, Macy’s, and Pottery Barn. The use of a disputed domain name to host link to the complainant’s competitors demonstrates the respondent’s bad faith under Policy ¶ 4(b)(iii). See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (“The disputed domain names resolve to websites that list links to competitors of Complainant, evidence that Respondent intends to disrupt Complainant’s business, a further indication of bad faith pursuant to Policy ¶ 4(b)(iii).”). Because Complainant has provided evidence that many of the at-issue websites promote links to Complainant’s competitors, the Panel holds that Respondent has demonstrated bad faith registration and use of the <badbathandbeyond.com>, <bedandbeyond.com>, <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathabdbeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandbeyind.com>, <bedbathandbeyondcoupons.com>, <bedbathandeyond.com>, <bedbathanebeyond.com>, <bedbathbeond.com>, <bedbathebeyond.com>, <bedbathhandbeyond.com>, <bedbathybeyond.com>, <beddathbeyond.com>, <beedbathandbeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <buybuybbay.com>, <combedbathandbeyond.com>, and <dedbathandbeyond.com> domain names pursuant to Policy ¶ 4(b)(iii).
Respondent is presumably profiting in the form of click-through fees from its registration and use of the disputed domain names, because all of the disputed domain names resolve to websites that promote various generic links to third-party websites, some of which compete with Complainant in the domestic merchandise industry. All of the disputed domain names are confusingly similar to Complainant’s BED BATH & BEYOND or BUY BUY BABY marks, and are thus likely to mislead Internet users seeking products provided under those marks. A respondent’s use of a confusingly similar domain name to promote links to the complainant’s competitors supports an inference that the respondent receives click-through fees, and thus demonstrates the respondent’s bad faith under Policy ¶ 4(b)(iv). See 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).”). In the instant proceedings, all of the disputed domain names are confusingly similar to Complainant’s BED BATH & BEYOND or BUY BUY BABY marks. Furthermore, since Complainant has submitted evidence that the disputed domain names promote links to a variety of competing and unrelated websites, the Panel infers that Respondent has received click-through fees from its registration and use of the disputed domain name. Accordingly, Respondent has demonstrated bad faith registration and use of the disputed domain names pursuant to Policy ¶ 4(b)(iv).
Finally by registering certain domain names that are typographical errors of Complainant’s BED BATH & BEYOND or BUY BUY BABY marks, Respondent has engaged in typosquatting, which evidences Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). In Canadian Tire Corp. v. domain adm’r no.valid.email@worldnic.net 1111111111, D2003-0232 (WIPO May 22, 2003), a previous panel found that the respondent registered and used the disputed domain name in bad faith because the respondent “created ‘a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location’” through its practice of typosquatting. In the instant proceedings, the bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathhandbeyond.com>, <beedbathandbeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandeyond.com>, <bedbathbeond.com>, <badbathandbeyond.com>, <bedbathabdbeyond.com>, <bedbathandbeyind.com>, <bedbathanebeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <dedbathandbeyond.com>, and <beddathbeyond.com> domain names each alter the BED BATH & BEYOND mark by a single character, and thus constitute typographical errors likely to be made by Internet users seeking products under the BED BATH & BEYOND mark. The <bedbathebeyond.com> and <bedbathybeyond.com> domain names each alter the BED BATH & BEYOND mark by just two characters: by omitting the ampersand or its replacement word “and” and altering the remaining mark by a single character. An ampersand is not a recognized character in a domain name. However, neglecting to include an ampersand in a domain name constitutes an error which Internet users are likely to make, and the Panel concludes that the <bedbathebeyond.com> and <bedbathybeyond.com> domain names are included in a finding of bad faith typosquatting. Accordingly, Respondent has practiced typosquatting by capitalizing on common misspellings of Complainant’s BED BATH & BEYOND mark in a domain name, and has thus deliberately created a likelihood that the websites resolving from the <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathhandbeyond.com>, <beedbathandbeyond.com>, <bedbathebeyond.com>, <bedbathybeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandeyond.com>, <bedbathbeond.com>, <badbathandbeyond.com>, <bedbathabdbeyond.com>, <bedbathandbeyind.com>, <bedbathanebeyond.com>, <benbathandbeyond.com>, and <besbathandbeyond.com>, <dedbathandbeyond.com>, <beddathbeyond.com> domain names will be confused as websites sponsored by or affiliated with Complainant. Accordingly, Respondent has registered and used these twenty disputed domains name in bad faith under Policy ¶ 4(a)(iii).
Similarly, the <buybuybbay.com> domain name merely transposes two letters found in the BUY BUY BABY mark, and thus constitutes a typographical error likely to be made by Internet users seeking products under the BUY BUY BABY mark. Thus, pursuant to Canadian Tire Corp., supra, Respondent has practiced typosquatting, and has deliberately created a likelihood that the website resolving from the <buybuybbay.com> domain name will be confused as a website sponsored by or affiliated with Complainant. Accordingly, Respondent has registered and used the <buybuybbay.com> domain name in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the<badbathandbeyond.com>, <bedandbeyond.com>, <bedbadthandbeyond.com>, <bedbasthandbeyond.com>, <bedbatchandbeyond.com>, <bedbathaandbeyond.com>, <bedbathabdbeyond.com>, <bedbathanbeyond.com>, <bedbathandbeond.com>, <bedbathandbeyind.com>, <bedbathandbeyondcoupons.com>, <bedbathandeyond.com>, <bedbathanebeyond.com>, <bedbathbeond.com>, <bedbathebeyond.com>, <bedbathhandbeyond.com>, <bedbathybeyond.com>, <beddathbeyond.com>, <beedbathandbeyond.com>, <benbathandbeyond.com>, <besbathandbeyond.com>, <buybuybbay.com>, <combedbathandbeyond.com>, and <dedbathandbeyond.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: October 9, 2013
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page