Liberty Procurement Co. Inc (A Wholly Owned Subsidiary Of Bed Bath & Beyond Inc.) v. Anunet Pvt Ltd / Jyoti Mehta
Claim Number: FA1305001502197
Complainant is Liberty Procurement Co. Inc (A Wholly Owned Subsidiary Of Bed Bath & Beyond Inc.) (“Complainant”), represented by CitizenHawk, Inc., California. Respondent is Anunet Pvt Ltd / Jyoti Mehta (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bedbathamdbeyond.com>, registered with BizCN.com, Inc.
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.
David A. Einhorn appointed as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 29, 2013; the National Arbitration Forum received payment on May 29, 2013.
On May 29, 2013, BizCN.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <bedbathamdbeyond.com> domain name is registered with BizCN.com, Inc. and that Respondent is the current registrant of the name. BizCN.com, Inc. has verified that Respondent is bound by the BizCN.com, 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 July 19, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 8, 2013 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@bedbathamdbeyond.com. Also on July 19, 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 June 25, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David A. Einhorn 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’s Contentions
i. Respondent has not been commonly known by the disputed domain name.
ii. Respondent is using the disputed domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business.
i. Respondent is a recalcitrant, serial cybersquatter.
ii. Respondent’s advertised pay-per-click links displayed on the resolving websites promote products that compete with Complainant.
iii. Respondent registered and used the disputed domain name in bad faith by using the disputed domain name to attract and mislead consumers for its own profit.
iv. Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith.
6. The earliest date on which Respondent registered the disputed domain name was April 4, 2005.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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.”).
Complainant asserts that it operates a chain of domestic merchandise retail stores across the United States, Puerto Rico, and Canada. Complainant argues that it is the owner of trademark registrations with the USPTO for the BED BATH & BEYOND mark (e.g., Reg. No. 1,831,709, registered April 19, 1994). The Panel notes that Respondent resides in India. However, the Panel finds that it is irrelevant whether Complainant has registered its trademark in the country of Respondent’s residence under Policy ¶ 4(a)(i). See Renaissance Hotel Holdings, Inc. v. Renaissance Cochin, FA 932344 (Nat. Arb. Forum Apr. 23, 2007) (finding that it does not matter whether the complainant has registered its trademark in the country in which the respondent resides, only that it can establish rights in some jurisdiction). Thus, the Panel concludes that Complainant’s registration of the BED BATH & BEYOND mark with the USPTO proves its rights in the mark pursuant to Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Complainant argues that the disputed domain name is confusingly similar to Complainant’s mark because it differs by only a single character from Complainant’s mark. The Panel notes that Respondent uses “amd” instead of the symbol “&” in its disputed domain name. The Panel determines that Respondent’s replacement of the symbol “&” for the term “amd” is inconsequential to a Policy ¶ 4(a)(i) determination. 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”). The Panel notes that Respondent substitutes the letter “m” for the letter “n” in the alphabetical version of Complainant’s BED BATH & BEYOND mark, which would include the word “and” instead of the ampersand. The Panel finds that Respondent’s substitution of a single letter in the mark does not differentiate its domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”). Therefore, the Panel holds that Respondent’s <bedbathamdbeyond.com> domain name is confusingly similar to Complainant’s BED BATH & BEYOND mark pursuant to Policy ¶ 4(a)(i).
Complainant asserts that Respondent has not been commonly known by the disputed domain name. The Panel notes that the WHOIS record lists “Anunet Pvt Ltd / Jyoti Mehta” as the registrant of the <bedbathamdbeyond.com> domain name. Complainant claims that Respondent is not sponsored by or legitimately affiliated with Complainant in any way. Complainant argues that it has not given Respondent permission to use Complainant’s mark in a domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complainant argues that Respondent is using the disputed domain name to redirect unsuspecting Internet users to a website featuring generic links to third-party websites, some of which directly compete with Complainant’s business. The Panel notes that Respondent’s <bedbathamdbeyond.com> domain name resolves to a webpage featuring competing hyperlinks titled “BEDDING COVERS AT JCP,” “POTTERY BARN,” “CRATE & BARREL APPLIANCES.” Complainant asserts that Respondent presumably receives pay-per-click fees from these linked websites. Previous panels have determined that a Respondent who uses a disputed domain name to provide competing hyperlinks is not using the domain name for a bona fide offering of goods and services or a legitimate noncommercial or fair use. See ALPITOUR S.p.A. v. Albloushi, FA 888651 (Nat. Arb. Forum Feb. 26, 2007) (rejecting the respondent’s contention of rights and legitimate interests in the <bravoclub.com> domain name because the respondent was merely using the domain name to operate a website containing links to various competing commercial websites, which the panel did not find to be a use in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Accordingly, the Panel holds that Respondent was not using the disputed domain name in connection with a Policy ¶ 4(c)(i) bona fide offering of goods and services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Complainant has therefore also satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent is a recalcitrant, serial cybersquatter. Complainant asserts that searches through the NAF and WIPO UDRP decision databases reveal that Respondent has engaged in an ongoing pattern of such behavior. Alaska Air Group, Inc., and its subsidiary, Alaska Airlines v. Anunet Pvt Ltd / Jyoti Mehta, FA 1481995 (Nat. Arb. Forum March 11, 2013); Metropolitan Life Ins. Co. v. Anunet Pvt Ltd / Jyoti Mehta, FA 1406441 (Nat. Arb. Forum October 26, 2011); Int’l Bancshares Corp. v. Anunet Pvt Ltd c/o Jyoti Mehta, FA 1295978 (Nat. Arb. Forum January 14, 2010). The Panel finds that Respondent’s prior UDRP proceedings resulting in findings of bad faith and transfer suggest bad faith use and registration of the <bedbathamdbeyond.com> domain name under Policy ¶ 4(b)(ii). See Azar Int’l Inc. v. Texas Int’l Prop. Assocs., FA 1122600 (Nat. Arb. Forum Feb. 18, 2008) (determining that the respondent’s forty-one prior UDRP rulings were evidence of bad faith registration under Policy ¶ 4(b)(ii)).
Complainant contends that Respondent’s advertised pay-per-click links displayed on the resolving websites promote products that compete with Complainant. The Panel notes that Respondent’s webpage provides links to competitors of Complainant. Complainant claims that these links divert potential customers away from Complainant to third-party websites, which disrupts Complainant’s business. The Panel agrees that Respondent’s <bedbathamdbeyond.com> domain name disrupts Complainant’s business pursuant to 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).”).
Complainant claims that Respondent registered and used the disputed domain name in bad faith by using the disputed domain name to attract and mislead consumers for its own profit. Complainant contends that Respondent has set up a “click through” website, through which it likely profits for each misdirected Internet user. In Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003), the panel held that the respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to complainant's competitors and respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’ Accordingly, the Panel finds that Respondent registered and is using the <bedbathamdbeyond.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Complainant alleges that Respondent’s typosquatting behavior is, in and of itself, evidence of bad faith. The Panel notes that Respondent’s <bedbathamdbeyond.com> domain name misspells Complainant’s BED BATH & BEYOND mark by substituting the letter “n” for “m” in the alphabetical version of Complainant’s mark, instead using the term “amd” in place of “&.” Complainant argues that Respondent’s misspelling of the disputed domain name was intentionally designed to improperly capitalize on Complainant’s famous mark and its related business. The Panel agrees that Respondent is typosquatting, demonstrating bad faith use and registration of the domain name under Policy ¶ 4(a)(iii). See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (finding bad faith registration and use of the <microssoft.com> domain name as it merely misspelled the complainant’s MICROSOFT mark).
Thus, Complainant has also 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 <bedbathamdbeyond.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: August 20, 2013
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