Bed Bath & Beyond Procurement Co. Inc. (N/K/A Liberty Procurement Co. Inc.) v. ibrahim teoman tutkun
Claim Number: FA1407001567906
Complainant is Bed Bath & Beyond Procurement Co. Inc. (N/K/A Liberty Procurement Co. Inc.) (“Complainant”), represented by CitizenHawk, Inc., California, USA. Respondent is ibrahim teoman tutkun (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bedbaathandbeyond.com>, registered with GoDaddy.com, LLC.
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 July 1, 2014; the National Arbitration Forum received payment on July 1, 2014.
On Jul 02, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <bedbaathandbeyond.com> domain name(s) is/are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 2, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 22, 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@bedbaathandbeyond.com. Also on July 2, 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 July 28, 2014, 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. Complainant, Bed Bath & Beyond Procurement Co. Inc., has been using the BED BATH & BEYOND trademark in commerce since 1971 in connection with the retail sale of linen products, housewares, and home furnishings.
ii. Complainant has a valid trademark registration with the United States Patent and Trademark Office (“USPTO”) for the BED BATH & BEYOND mark (Reg. No. 1830725, registered April 12, 1994).
iii. The domain name <bedbaathandbeyond.com> is confusingly similar to the mark in which Complainant has rights.
i. Respondent has listed the disputed domain name for sale.
ii. Respondent is not commonly known by the disputed domain name.
iii. Respondent is using the disputed domain name to redirect Internet users to a website featuring links that lead to third-party websites, some of which compete directly with Complainant.
i. Respondent has listed the disputed domain name for sale.
ii. Respondent’s use of the disputed domain name is disrupting the business of Complainant.
iii. Respondent is using the disputed domain name for commercial gain through reliance on confusion or mistake by linking potential customers of Complainant to products sold by competitors of Complainant, and by collecting click-through revenue from the site.
iv. Respondent’s typosquatting conduct is evidence of bad faith.
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 alleges that it has been using the BED BATH & BEYOND trademark in commerce since 1971 in connection with the retail sale of linen products, housewares, and home furnishings. Complainant asserts that it has a valid trademark registration with the USPTO for the BED BATH & BEYOND mark (Reg. No. 1830725, registered April 12, 1994). The Panel notes that although Respondent resides in Turkey, this is irrelevant under Policy ¶ 4(a)(i) as Complainant need not register its mark in the country that Respondent operates in. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). The Panel observes that Complainant’s registration of the BED BATH & BEYOND trademark with the USPTO shows that it has the rights in the mark pursuant to Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)).
Complainant argues that the domain name <bedbaathandbeyond.com> is confusingly similar to the mark in which Complainant has rights. The Panel notes that the disputed domain name merely consists of a typographical error to Complainant’s mark. Traditionally, such errors create an inference of confusing similarity. See 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).”). Accordingly, the Panel finds that the disputed domain name <bedbaathandbeyond.com> is confusingly similar to the BED BATH & BEYOND mark pursuant to Policy ¶ 4(a)(i).
Complainant contends that Respondent is not commonly known by the disputed domain name. The Panel notes that the registrant of the disputed domain name is listed as “ibrahim teoman tutkun”. In Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) the panel found that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute. The present circumstances are comparable to that case because the only evidence available to the Panel is the name listed in the WHOIS information, due to Respondent’s default. Therefore, the Panel holds that Respondent is not commonly known by the disputed domain name <bedbaathandbeyond.com> under Policy ¶ 4(c)(ii).
Complainant urges that Respondent is using the disputed domain name to redirect Internet users to a website featuring links that lead to third-party websites, some of which compete directly with Complainant. The Panel notes that the disputed domain name resolves to a web page that features links to direct Competitors of complainant. The Panel finds that Respondent is using the disputed domain name neither for a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) as the disputed domain name leads to a webpage that links Internet users to direct competitors of Complainant. See H-D Michigan Inc. v. Buell, FA 1106640 (Nat. Arb. Forum Jan. 2, 2008) (finding that, because the “[r]espondent’s disputed domain names resolve to a website featuring a series of advertising links to various third-parties, many of whom offer products and services in direct competition with those offered under [the complainant’s] mark,” the respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Thus, Complainant has also satisfied Policy ¶ 4(a)(ii).
Complainant urges that Respondent’s use of the disputed domain name is disrupting the business of Complainant. Complainant claims that Respondent is using the disputed domain name to divert potential Complainant customers to direct competitors of Complainant. The Panel notes that the links on the disputed domain name contain generically phrased advertisements to items similar to that which Complainant sells, such as “Pillows”, “Kid’s Bedding”, and “Coffee Makers”. The Panel finds that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iii) as the web page resolved to by the disputed domain name links potential Complainant customers to direct competitors of Complainant. See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Nat. Arb. Forum July 14, 2008) (“Respondent’s disputed domain name resolves to a parking website which provides click through revenue to Respondent and which displays links to travel-related products and services that directly compete with Complainant’s business. Accordingly, Respondent’s competing use of the disputed domain name is additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Complainant contends that Respondent is using the disputed domain name for commercial gain through reliance on confusion or mistake by linking potential customers of Complainant to products sold by competitors of Complainant, and by collecting click-through revenue from the site. As previously indicated, the disputed domain name resolves to a webpage that links Internet users to direct competitors of Complainant. Complainant presumes that Respondent is compensated for promoting the links. The Panel agrees that Respondent is attempting to mislead consumers as to Complainant’s affiliation with the disputed domain name, and that Respondent is presumably profiting from the resulting confusion. Accordingly, the Panel finds evidence of bad faith under Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“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.’”).
Complainant urges that Respondent’s typosquatting conduct is itself evidence of bad faith. The Panel agrees, and finds evidence of bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
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 <bedbaathandbeyond.com> domain name be TRANSFERRED from Respondent to Complainant.
David A. Einhorn, Panelist
Dated: August 8, 2014
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