Bed Bath & Beyond Procurement Co. Inc. (n/k/a Liberty Procurement Co. Inc.) v. Domain Administrator / Fundacion Private Whois
Claim Number: FA1402001545553
Complainant is Bed Bath & Beyond Procurement Co. Inc. (n/k/a Liberty Procurement Co. Inc.) (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Domain Administrator / Fundacion Private Whois (“Respondent”), Panama.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <bedbathandbeyond.co>, <bedbathandbeyondcouponsnow.com>, <bedbathandbeyyond.com>, <bedbathbeyind.com>, <bedbathbeypnd.com>, and <bedbathneyond.com> registered with CCI REG S.A.; 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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 25, 2014; the National Arbitration Forum received payment on February 25, 2014.
On February 26, 2014; Mar 03, 2014, CCI REG S.A.; Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <bedbathandbeyond.co>, <bedbathandbeyondcouponsnow.com>, <bedbathandbeyyond.com>, <bedbathbeyind.com>, <bedbathbeypnd.com>, and <bedbathneyond.com> domain names are registered with CCI REG S.A.; Internet.bs Corp. and that Respondent is the current registrant of the names. CCI REG S.A.; Internet.bs Corp. has verified that Respondent is bound by the CCI REG S.A.; 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 March 5, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 25, 2014 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@bedbathandbeyond.co, postmaster@bedbathandbeyondcouponsnow.com postmaster@bedbathandbeyyond.com, postmaster@bedbathbeyind.com, postmaster@bedbathbeypnd.com, and postmaster@bedbathneyond.com. Also on March 5, 2014, 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 1, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed The Honourable Neil Anthony Brown QC 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
Complainant makes the following contentions:
1. Complainant has rights in the BED BATH & BEYOND mark.
a. Complainant is a wholly owned subsidiary of Bed Bath & Beyond Inc. Complainant, through its subsidiary, owns the federally registered BED BATH & BEYOND mark with the United States Patent and Trademark Office (“USPTO”).
i. Reg. No. 1,830,725 registered April 12, 1994.
ii. Reg. No. 1,831,709 registered April 19, 1994.
iii. Reg. No. 2,510,262 registered November 20, 2001.
iv. Reg. No. 3,854,909 registered September 28, 2010.
b. Respondent’s <bedbathandbeyondcouponsnow.com>, <bedbathandbeyyond.com>, <bedbathbeyind.com>, <bedbathbeypnd.com>, and <bedbathneyond.com> domain names are confusingly similar to Complainant’s BED BATH & BEYOND mark.
c. Respondent’s <bedbathandbeyond.co> domain name is identical to Complainant’s BED BATH & BEYOND mark.
2. Respondent has no rights or legitimate interests in the disputed domain names.
a. Respondent is not commonly known by the disputed domain names.
i. The WHOIS information for the disputed domain names suggests that Respondent is known by “Domain Administrator.”
ii. Complainant has not licensed or authorized Respondent to use its BED BATH & BEYOND mark in any way.
b. Respondent uses the disputed domain names to redirect Internet users to websites featuring generic links to third-party websites, some of which directly compete with Complainant’s business.
i. Complainant’s registrations for the BED BATH & BEYOND mark predate Respondent’s registrations for the disputed domain names.
ii. Respondent’s use of the disputed domain names indicates typosquatting behavior.
3. Respondent registered and is using the disputed domain names in bad faith.
a. Respondent has a pattern of bad faith domain name use and registrations.
b. Respondent’s resolving websites offer products also offered by Complainant, and is thereby competing with Complainant. Complainant states that this use disrupts Complainant’s legitimate business.
c. Respondent uses the disputed domain names to resolve to a website featuring pay-per-click links in order to generate revenue. Respondent’s resolving website displays content directly related to Complainant’s business.
d. Respondent’s typosquatting behavior is in itself bad faith use and registration.
e.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1.Complainant is a United States company that is a wholly owned subsidiary of Bed Bath & Beyond Inc.
2.Complainant, through its subsidiary, owns the federally registered BED BATH & BEYOND mark with the United States Patent and Trademark Office (“USPTO”).
i. Reg. No. 1,830,725 registered April 12, 1994.
ii. Reg. No. 1,831,709 registered April 19, 1994.
iii. Reg. No. 2,510,262 registered November 20, 2001.
iv. Reg. No. 3,854,909 registered September 28, 2010.
3. (a) Respondent’s <bedbathandbeyond.com> was registered on July 20, 2010.
(b)Respondent’s <bedbathandbeyondcouponsnow.com> was registered on September 15, 2011.
(c)Respondent’s <bedbathandbeyyond.com> domain name was registered on July 14, 2010.
(d)Respondent’s <bedbathbeyind.com> domain name was registered April 15, 2009.
(e) Respondent’s <bedbathbeypnd.com> domain name was registered on March 26, 2009.
(f)Respondent’s <bedbathneyond.com> domain name was registered September 5, 2008.
4. Respondent uses the disputed domain names to redirect Internet users to websites 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 first question that arises is whether Complainant has rights in a trademark or service mark on which it can rely. Complainant contends that it is a wholly owned subsidiary of Bed Bath & Beyond Inc. Complainant explains that, through its subsidiary, it owns the federally registered BED BATH & BEYOND mark with the USPTO (e.g., Reg. No. 1,830,725 registered April 12, 1994). Panels have previously found that a complainant has rights in a mark where it can provide evidence of its registration with a recognized trademark authority. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”). The Panel notes that prior panels have concluded that a complainant need not register a domain name in the jurisdiction of respondent, it only need provide evidence of a registration with some authority. See KCTS Television Inc. v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that it does not matter for the purpose of Policy ¶ 4(a)(i) whether the complainant’s mark is registered in a country other than that of the respondent’s place of business). The Panel concludes that Complainant has rights in the BED BATH & BEYOND mark under Policy ¶ 4(a)(i).
The second question that arises is whether the disputed domain names are identical or confusingly similar to Complainant’s BED BATH & BEYOND mark. Complainant asserts that Respondent’s <bedbathandbeyondcouponsnow.com>, <bedbathandbeyyond.com>, <bedbathbeyind.com>, <bedbathbeypnd.com>, and <bedbathneyond.com> domain names are confusingly similar to Complainant’s BED BATH & BEYOND mark. The Panel notes that Respondent’s <bedbathandbeyondcouponsnow.com> domain name adds the generic terms “coupons” and “now.” The Panel also notes that Respondent removes all the spaces in Complainant’s mark, replaces the ampersand with the word “and,” as well as adds the gTLD “.com.” The Panel notes that the panel in McKinsey Holdings, Inc. v. Indidom, D2000-1616 (WIPO Jan. 31, 2001) held that the removal of an ampersand from complainant’s mark does not change Internet users’ understanding of a mark, and thus does not avoid a finding of confusingly similar under Policy ¶ 4(a)(i). The Panel further notes that the panel in Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) held that the elimination of the spaces in a complainant’s mark and the addition of a gTLD does not distinguish a disputed domain name from a given mark. The Panel also notes that the panel in Body Shop Int’l PLC v. CPIC NET, D2000-1214 (WIPO Nov. 26, 2000) found that the addition of a generic word did not differentiate the disputed domain name from the given mark. The Panel therefore concludes that Respondent’s <bedbathandbeyondcouponsnow.com> domain name is confusingly similar to Complainant’s BED BATH & BEYOND mark.
Complainant also contends that Respondent’s <bedbathandbeyyond.com> domain name is confusingly similar to Complainant’s BED BATH & BEYOND mark. The Panel notes that Respondent adds an additional letter “y” to Complainant’s mark. As discussed above, the Panel notes that removing spaces, replacing ampersands with the word “and” and adding a gTLD are insufficient variations to a disputed domain name to differentiate it from a complainant’s registered mark. See McKinsey Holdings, Inc. v. Indidom; see also Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007). The Panel further notes that adding an additional letter does not differentiate a disputed domain name from a given mark under Policy 4(a)(i) in accordance with Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb. Forum Aug. 28, 2002). Here, the Panel concluded that respondent’s addition of a letter onto a complainant’s registered mark does not distinguish it from the registered mark. The panel therefore concludes that Respondent’s <bedbathandbeyyond.com> domain name is confusingly similar to Complainant’s BED BATH & BEYOND mark.
Complainant claims that Respondent’s <bedbathbeyind.com>, <bedbathneyond.com>, and <bedbathbeypnd.com> domain names are also confusingly similar to Complainant’s BED BATH & BEYOND mark under Policy ¶ 4(a)(i). In addition to removing the spaces and adding a gTLD to these domain names, the Panel notes that Respondent removes the ampersand and misspells the word “beyond” by adding one incorrect letter. The Panel notes that the panel in Intelius, Inc. v. Hyn, FA 703175 (Nat. Arb. Forum July 5, 2006) found that respondent’s disputed domain name was confusingly similar to complainant’s mark because the disputed domain name differed from the mark by one letter. In accordance with Bond & Co. Jewelers, Inc. v. Tex. Int’l Prop. Assocs., FA 937650 (Nat. Arb. Forum Apr. 30, 2007) the Panel decides that Respondent’s <bedbathbeyind.com>, <bedbathneyond.com>, and <bedbathbeypnd.com> domain names are also confusingly similar to Complainant’s BED BATH & BEYOND mark under Policy ¶ 4(a)(i).
Complainant additionally claims that Respondent’s <bedbathandbeyond.co> domain name is identical to Complainant’s BED BATH & BEYOND mark under Policy ¶ 4(a)(i). The Panel notes that Respondent’s <bedbathandbeyond.co> domain name merely removes the spaces in the words, exchanges the ampersand for the word “and” and adds the country code top-level domain (“ccTLD”) “.co.” The Panel notes that the Panel in Roux Labs., Inc. v. Sheldeez Beauty Salon, D2005-0799 (WIPO Sept. 30, 2005) held that since a domain name can only consist of alphanumeric text, design elements are ignored when considering Policy 4(a)(i). Additionally the Panel notes that the panel in Hannover Ruckversicherungs-AG v. Ryu, FA 102724 (Nat. Arb. Forum Jan. 7, 2001) concluded that respondent’s disputed domain name was identical to complainant’s mark because spaces are impermissible in a domain name and gTLDs are required. Specifically, the Panel notes that the panel in Crocs, Inc. v. [Registrant], FA 1043196 (Nat. Arb. Forum Sept. 2, 2007) found that the addition of a ccTLD is irrelevant under Policy ¶ 4(a)(i). The Panel therefore concludes that Respondent’s <bedbathandbeyond.co> domain name is identical to Complainant’s BED BATH & BEYOND mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that 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.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s BED BATH & BEYOND mark and
to use it in its domain names, making merely minor spelling alterations and additions
to the trademark when incorporating it into the domain names;
(b) Respondent has used the disputed domain names to redirect Internet users to websites featuring generic links to third-party websites, some of which directly compete with Complainant’s business;
(c)Respondent has engaged in these activities without the consent or
approval of Complainant;
(d) Complainant contends that Respondent has no rights or legitimate interests in the disputed domain names under Policy ¶ 4(c)(ii). Complainant explains that Respondent is not commonly known by the disputed domain names. Complainant states that the WHOIS information for the disputed domain names suggests that Respondent only provides the identity of “Domain Administrator” and nothing more. Complainant also claims that its registrations for the BED BATH & BEYOND mark predate Respondent’s registrations for the disputed domain names. Complainant further contends that it has not licensed or authorized Respondent to use its BED BATH & BEYOND mark in any way. Prior panels have found that a respondent has no rights or legitimate interests in a domain name where there is no evidence to indicate that it is commonly known by the disputed domain name. See 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). The Panel therefore concludes that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii);
(e) Complainant next states that Respondent uses the disputed domain names to redirect Internet users to websites featuring generic links to third-party websites, some of which directly compete with Complainant’s business. See Exhibit H. The Panel notes that the <bedbathandbeyond.co>, <bedbathandbeyyond.com>, <bedbathbeyind.com>, <bedbathbeypnd.com>, and <bedbathneyond.com> domain names resolve to parked websites featuring links such as “Bed Bath Coupon Print,” “Free Printable Coupons,” “Pottery Barn Bath,” “Comforter Sets,” “Bed Bath and Beyond,” “Home Furnishings,” and “Modern Bath.” The Panel notes that the panel in United Servs. Auto. Ass’n v. Savchenko, FA 1105728 (Nat. Arb. Forum Dec. 12, 2007) previously found that a respondent had no rights or legitimate interests in a disputed domain name when it used it to resolve to a website featuring various links to complainant’s competitors. The Panel here, therefore finds that Respondent’s use of the disputed domain names is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) or 4(c)(iii);
(f) Complainant claims that Respondent has no rights or legitimate interests in the <bedbathandbeyondcouponsnow.com> domain name. The Panel notes that Respondent’s <bedbathandbeyondcouponsnow.com> domain name resolves to a website entitled, “Bed Bath And Beyond Coupons. Save with Bed Bath and Beyond Coupons.” See Exhibit H. The Panel also notes that Respondent’s resolving domain name displays a description of Complainant’s business. The Panel notes that Respondent’s resolving website additionally features the links “Coupon Savings at Target,” as well as “Bed Bath and Beyond,” “Save with Coupons for Bed Bath and Beyond,” and “How to Find Bed Bath and Beyond Coupons.” The Panel in Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) found that using a confusingly similar domain name to operate a pay-per-click website offering services that compete with complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. The present Panel therefore finds that Respondent has no rights or legitimate interests in the <bedbathandbeyondcouponsnow.com> domain name;
(g) Complainant asserts that Respondent’s use of the disputed domain names indicates typosquatting behavior. The Panel notes that previous panels have traditionally found typosquatting where there is a disputed domain name representing a typographical error with respect to a complainant’s mark or correlation between an incorrect letter found in the disputed domain name and its placement on a computer keyboard near the correct letter as found in the complainant’s mark. 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’”). The Panel notes that adding additional words does not traditionally constitute typosquatting behavior, but that in the present case the alterations to the trademark to add additional words shows that Respondent has been acting illegitimately by altering the spelling of Complainant’s trademark. Accordingly, the Panel concludes that Respondent’s <bedbathandbeyond.co>, <bedbathandbeyyond.com>, <bedbathbeyind.com>, <bedbathbeypnd.com>, and <bedbathneyond.com> domain names are illegitimate versions of Complainant’s registered mark and, as such, Respondent’s Policy ¶ 4(a)(ii) rights or legitimate interests in the domain names, if any, are significantly diminished.
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain names.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain names were registered in bad faith and have been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain
names were registered and used in bad faith. That is so for the following
reasons.
First, Complainant contends that Respondent registered and is using the disputed domain names in bad faith because Respondent has a pattern of bad faith domain name use and registrations under Policy ¶ 4(b)(ii). The Panel notes that Complainant provides evidence of Respondent’s bad faith use and registrations in Exhibit N listing Respondent’s prior cases as Lorillard Licensing Co., LLC v. Fundacion Private Whois/ Domain Administrator, FA 1499683 (Nat. Arb. Forum June 25, 2013); Target Brands, Inc. v. Fundacion Private Whois/ Domain Administrator, FA 1498044 (Nat. Arb. Forum June 25, 3013); and Wolkswagen AG v. Fundacion Private Whois, Domain Administrator, D2013-0690 (WIPO June 8, 2013). The Panel notes that the panel in Westcoast Contempo Fashions Ltd. v. Manila Indus., Inc., FA 814312 (Nat. Arb. Forum Nov. 29, 2006) found bad faith use and registration when respondent was subject to numerous UDRP proceedings where transfer of the domain name was ordered. The Panel also notes that the panel in Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) found bad faith use and registration where a respondent registered numerous infringing domain names based on infringing on the same mark of complainants. As the Panel believes that the somewhat generically phrased name of this Respondent is in fact the same as the prior respondents noted above, the Panel agrees this conduct suggests bad faith. The Panel in this present situation therefore finds that Respondent registered and is using the <bedbathandbeyond.co>, <bedbathandbeyondcouponsnow.com>, <bedbathandbeyyond.com>, <bedbathbeyind.com>, <bedbathbeypnd.com>, and <bedbathneyond.com> domain names in bad faith under Policy ¶ 4(b)(ii).
Secondly, Complainant contends that Respondent’s resolving websites offer products also offered by Complainant, and is thereby competing with Complainant. Complainant states that this use disrupts Complainant’s legitimate business. The Panel has consulted Exhibit H and has seen the screen shots Complainant provides of Respondent’s websites that resolve from the disputed domain names. The Panel notes that panels have previously found that using a disputed domain name to resolve to a website that offers pay-per-click links that compete with complainant is bad faith use and registration. For example, the Panel notes the case H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) where the panel found bad faith when respondent used a confusingly similar domain name to resolve to a website listing links to complainant’s competitors. The H-D Michigan Inc. v. Buell panel further decided that respondent’s actions indicated its intent to disrupt complainant’s business in bad faith. The Panel in this present proceeding therefore finds that Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iii).
Thirdly, Complainant asserts that Respondent has registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iv). Complainant states that Respondent uses the disputed domain names to resolve to a website featuring pay-per-click links in order to generate revenue. Complainant further points out that Respondent’s resolving website displays content directly related to Complainant’s business. The Panel has examined Exhibit H to view the websites resolving from the disputed domain names. The Panel additionally notes that the panel in Univ. of Houston Sys. v. Salvia Corp., FA 637920 (Nat. Arb. Forum Mar. 21, 2006) found bad faith use and registration where the respondent used confusingly similar domain names to resolve to a website displaying links to competing and noncompeting commercial websites for a presumed referral fee. The Panel therefore finds that Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iv).
Fourthly, Complainant further asserts that Respondent’s typosquatting behavior is in itself bad faith registration and use. The previous panel in Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) found bad faith use and registration when respondent’s registration of typosquatted versions of a complainant’s mark was demonstrated. The present Panel therefore concludes that Respondent’s registration and use of the <bedbathandbeyond.co>, <bedbathandbeyyond.com>, <bedbathbeyind.com>, <bedbathbeypnd.com>, and <bedbathneyond.com> disputed domain names indicates typosquatting and thus bad faith use and registration under Policy ¶ 4(a)(iii).
Finally, in addition and having regard to the totality of the evidence, the Panel
finds that, in view of Respondent’s registration of the disputed domain names using the BED BATH & BEYOND mark and in view of the conduct that Respondent has engaged in when using them, Respondent registered and used the disputed domain names in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bedbathandbeyond.co>, <bedbathandbeyondcouponsnow.com>, <bedbathandbeyyond.com>, <bedbathbeyind.com>, <bedbathbeypnd.com>, and <bedbathneyond.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: April 7, 2014
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