Bed Bath & Beyond Procurement Co. Inc. (n/k/a Liberty Procurement Co. Inc.) v. Jeffrey B. Davis
Claim Number: FA1411001591621
Complainant is Bed Bath & Beyond Procurement Co. Inc. (n/k/a Liberty Procurement Co. Inc.) (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is Jeffrey B. Davis (“Respondent”), Cyprus.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bedbayhandbeyond.com>, registered with FABULOUS.COM PTY LTD.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on November 23, 2014; the National Arbitration Forum received payment on November 23, 2014.
On November 24, 2014, FABULOUS.COM PTY LTD. confirmed by e-mail to the National Arbitration Forum that the <bedbayhandbeyond.com> domain name is registered with FABULOUS.COM PTY LTD. and that Respondent is the current registrant of the name. FABULOUS.COM PTY LTD. has verified that Respondent is bound by the FABULOUS.COM PTY LTD. 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 November 25, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 15, 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@bedbayhandbeyond.com. Also on November 25, 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 December 23, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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
1. Respondent’s <bedbayhandbeyond.com> domain name is confusingly similar to Complainant’s BED BATH & BEYOND mark.
2. Respondent does not have any rights or legitimate interests in the <bedbayhandbeyond.com> domain name.
3. Respondent registered and uses the <bedbayhandbeyond.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns the BED BATH & BEYOND mark as demonstrated by federal registrations with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 1,830,725, registered April 12, 1994). Complainant conducts its online business through <bedbathandbeyond.com>. Complainant uses the mark in connection with retail home goods and services.
Respondent registered the <bedbayhandbeyond.com> domain name on October 2, 2005, and uses it to resolve 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 Panel finds that Complainant’s USPTO registrations establishes its rights in the BED BATH & BEYOND mark pursuant to Policy ¶ 4(a)(i). See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <bedbayhandbeyond.com> domain name incorporates the BED BATH & BEYOND mark and merely differs by a single character and adds the generic-top level domain name (“gTLD”) “.com.” Previous panels have found that a single letter alteration to a mark is insufficient to differentiate the resulting domain name from the integrated mark. See Orbitz Worldwide, LLC v. MGA LIMITED / mgaenterpriseslimited, FA 151503 (Nat. Arb. Forum Oct. 4, 2013) (“Respondent’s <cheaptiekets.com> domain name is confusingly similar to Complainant’s CHEAPTICKETS.COM mark, because the domain name merely replaces the letter ‘c’ in the word “tickets” with the letter ‘e.’”). The disputed domain name also differs from the BED BATH & BEYOND mark in that the domain name eliminates the spacing in mark and replaces the ampersand (&) with the equivalent conjunction “and.” Previous panels have determined that the inclusion of a gTLD, the elimination of spacing in a complainant’s mark, and the replacement of an ampersand “&” with the word “and,” are irrelevant in a Policy ¶ 4(a)(i) analysis. See 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).”); 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). Accordingly, the Panel finds that the <bedbayhandbeyond.com> domain name is confusingly similar to Complainant’s BED BATH & BEYOND mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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.”).
Complainant argues that Respondent is not commonly known by the disputed domain as demonstrated by the WHOIS record, which indicates that “Jeffrey B. Davis” is the registrant of the disputed domain name. Complainant states that it has not authorized Respondent’s use of its BED BATH & BEYOND mark. In light of the available evidence, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Complainant further argues that Respondent is not using the disputed domain name to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Complainant asserts that Respondent is using the disputed domain name to redirect Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. Complainant assumes that Respondent receives pay-per-click fees from the linked websites. The Panel notes screenshots of the websites resolving from the disputed domain name, featuring links to “Bed Bath and Beyond,” as well as “Bed and Bath Accessories,” and “Animal Print Bed Sheets.” Previous panels have found that a landing page promoting links to the complainant and its competitors does not constitute a bona fide offering of goods or services, or a legitimate noncommercial or fair use. See Skyhawke Techns., LLC v. Tidewinds Group, Inc., FA 949608 (Nat. Arb. Forum May 18, 2007) (“Respondent is using the <skycaddy.com> domain name to display a list of hyperlinks, some of which advertise Complainant and its competitors’ products. The Panel finds that this use of the disputed domain name does not constitute 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).”). Accordingly, the Panel finds that Respondent is not using the disputed domain name to provide 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 Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent’s willingness to sell the disputed domain name evinces Respondent’s bad faith. The Panel notes that the WHOIS listing advertises the disputed domain name for sale. Prior panels have determined that a general offer to sell a disputed domain name suggests the respondent lacks rights in the name. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”). The Panel accordingly finds that Respondent’s willingness to sell the <bedbayhandbeyond.com> domain name constitutes Respondent’s bad faith pursuant to Policy ¶ 4(b)(i).
Respondent disrupts Complainant’s business as the links displayed on the resolving pages promote products that compete with Complainant. This also constitutes bad faith. 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).”). Thus, the Panel finds bad faith under Policy ¶ 4(b)(iii).
Complainant claims Respondent is taking advantage of Complainant’s well-known mark to achieve its own commercial gain, which shows Respondent’s bad faith. The Panel agrees and finds 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).”).
Respondent’s typosquatting is a further indication of bad faith. Past panels have consistently found that typosquatting is a practice that takes advantage of common typographical errors, and is thus motivated by bad faith. See Bank of Am. Corp. v. Tak Ume domains for sale, FA 154528 (Nat. Arb. Forum May 19, 2003) (holding that the practice of typosquatting “diverts Internet users who misspell Complainant’s mark to a website apparently owned by Respondent for Respondent’s commercial gain. ‘Typosquatting’ has been recognized as evidencing bad faith registration and use under Policy ¶ 4(b)(iv).”); see also Liberty Procurement Co. In. v. bedbathandbeyon.com / Hanna El Hinn, FA 1481712 (Nat. Arb. Form Mar. 11, 2013) (“Although not the classic case of typosquatting, because ‘and’ is the logical substitute for an ampersand in a domain name where punctuation is prohibited, the Panel agrees that the domain name is a typosquatted version of Complainant’s BED BATH & BEYOND mark, which demonstrates bad faith under Policy ¶ 4(a)(iii).”). The Panel thus finds further bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Complainant has satisfied 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 <bedbayhandbeyond.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 2, 2015
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