Mattress Firm, Inc. v. Redacted for Privacy / Privacy service provided by Withheld for Privacy ehf
Claim Number: FA2203001989499
Complainant is Mattress Firm, Inc. (“Complainant”), represented by Mike A. McArthur of Haynes and Boone, LLP, Texas, USA. Respondent is Redacted for Privacy / Privacy service provided by Withheld for Privacy ehf (“Respondent”), Iceland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mattressfirm.us.com>, registered with NameCheap, 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.
Charles A. Kuechenmeister, Panelist.
Complainant participated in the mandatory CentralNic Mediation, and the mediation process was terminated.
Complainant submitted a Complaint to the Forum electronically on March 23, 2022; the Forum received payment on March 23, 2022.
On March 23, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <mattressfirm.us.com> domain name (the Domain Name) is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with CentralNic Dispute Resolution Policy (the “Policy”).
On March 24, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of April 13, 2022 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@mattressfirm.us.com. Also on March 24, 2022, 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 Forum transmitted to the parties a Notification of Respondent Default.
On April 19, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for the CentralNic 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 Policy, the Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of a Response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant operates one of the largest mattress and furniture retail outlets in the United States. It has rights in the MATTRESS FIRM mark through its registration of that mark with the United States Patent and Trademark Office (“USPTO”). Respondent’s <mattressfirm.us.com> Domain Name is identical or confusingly similar to Complainant’s MATTRESS FIRM mark, as it incorporates the mark in its entirety, merely omitting the space between the words in the mark and appending the “.us” country code top-level domain (“ccTLD”) and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the Domain Name. It is not commonly known by the Domain Name, it is not connected or affiliated with Complainant and Complainant has not authorized it to use its mark, and it is not using the Domain Name in connection with a bona fide offer of goods or services or for any legitimate noncommercial or fair use because the Domain Name resolves to a web site which passes off as Complainant and offers monetized hyperlinks to products which compete directly with Complainant’s business.
Respondent registered and uses the Domain Name in bad faith. It registered and is using the Domain Name to pass off as Complainant and disrupt Complainant’s business, it is using the Domain Name to attract for commercial gain Internet users to its web site by creating confusion as to the source, sponsorship affiliation or endorsement of its web site by Complainant, it registered the Domain Name without having any connection with Complainant, and it registered the Domain Name with actual knowledge of Complainant’s rights in the MATTRESS FIRM mark, which may further demonstrate bad faith.
B. Respondent
Respondent did not 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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered or is being used in bad faith.
In view of Respondent's failure to submit a Response, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CentralNic Dispute Resolution Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision, except where differences in the policies require a different analysis.
The Panel finds as follows with respect to the matters at issue in this proceeding:
Identical and/or Confusingly Similar
The MATTRESS FIRM mark was registered to Complainant with the USPTO (Reg. No. 3,923,443) on February 22, 2011 (USPTO registration certificate included in Complaint Exhibit 4). Complainant’s registration of its mark with a national trademark agency such as the USPTO establishes its rights in that mark for the purposes of Policy ¶ 4(a)(i). Synovus Financial Corp. v. Elizabeth Fagin / Wells & Wadw, FA 1601001655021 (Forum Feb. 5, 2016) (finding that Complainant had demonstrated its rights in the SYNOVUS mark through its registration with the USPTO), Phusion Projects, LLC vs. Ferg / Ferg Ferg, FA 1912001874943 (Forum Jan. 8, 2020) (“Complainant’s USPTO registration of its FOUR LOKO mark establishes Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <mattressfirm.us.com> Domain Name is identical or confusingly similar to Complainant’s mark. It incorporates the MATTRESS FIRM verbatim, merely omitting the space between the two words and adding the “.us” ccTLD and the “.com” gTLD. These changes do not distinguish the Domain Name from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). KW KONA INVESTORS, LLC v. Privacy.co.com / Privacy.co.com, Inc Privacy ID# 923815, FA 1784456 (Forum June 11, 2018) (“[T]he omission of spacing and addition of a gTLD are irrelevant in determining whether the disputed domain name is confusingly similar.”), MIGROS-GENOSSENSCHAFTS-BUND v. Tayfun yalcin, FA 1621184 (Forum July 8, 2015) (“In light of the fact that Respondent’s disputed domain name incorporates Complainant’s whole mark and merely adds the ccTLD “.us,” the Panel here finds that the disputed domain name is identical to Complainant’s MIGROS mark.”). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the change described above, Complainant’s mark is clearly recognizable within the Domain Name.
For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the MATTRESS FIRM mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(ii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) it is not commonly known by the Domain Name, (ii) it is not connected or affiliated with Complainant and Complainant has not authorized it to use its mark, and (iii) it is not using the Domain Name in connection with a bona fide offer of goods or services or for a legitimate noncommercial or fair use because the Domain Name resolves to a web site which passes off as Complainant and offers monetized hyperlinks to products which compete directly with Complainant’s business. These allegations are addressed as follows:
The WHOIS information furnished to the Forum by the registrar lists “Redacted for Privacy / Privacy Service provided by Withheld for Privacy ehf” as the registrant of the Domain Name. These names bear no resemblance to the Domain Name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no Response has been filed UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Panel is satisfied that Respondent has not been commonly known by the Domain Name.
Complainant states that there is no relationship between it and Respondent and that it has not authorized Respondent to use its MATTRESS FIRM mark. Complainant has specific competence to make these statements, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (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), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”).
Complaint Exhibit 8 contains screenshots of pages on the web site resolving from the Domain Name. While these pages do not copy exactly the pages on Complainant’s web site at <mattressfirm.com> (screenshots of pages of Complainant’s web site submitted as Complaint Exhibit 6), they prominently feature the name MATTRESS FIRM in one of Complainant’s registered stylized logos, and purport to offer Complainant’s mattresses for sale in photo arrays that are very similar in appearance to those on Complainant’s web site. Respondent’s web site clearly conveys the impression that it is either sponsored by Complainant or by an authorized dealer of Complainant’s products. Passing off as and purporting to sell a complainant’s goods is neither a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use as contemplated by Policy ¶ 4(c)(iii). Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business), Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
Respondent’s web site also contains links such as “Mattress Firm® Official Site,” "About Mattress Firm" - "Mattress Firm offers our customers free, safe shipping to your door as well as premium delivery options, including, haul-away of your old mattress," “Mattress Firm Locations,” and “Mattress Firm Near Me.” This portion of the web site appears to be a typical pay-per-click program, in which the Respondent receives payment for referrals to the linked site coming from its web site. Moreover, the links direct the visitor to the web site of another mattress company (screenshot of pages of “Classic Brands” web site submitted as Complaint Exhibit 10), which competes with Complainant. In addition to the compensation to Respondent for referrals to the Classic Brands site coming from its Domain Name, it may also receive additional compensation based upon any sales by Classic Brands flowing from a referral from Respondent. Using a confusingly similar domain name to attract Internet traffic to a webpage that offers pay-per-click links to goods and services, related and unrelated to a complainant’s business, is neither a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iii). McGuireWoods LLP v. Mykhailo Loginov / Loginov Enterprises d.o.o, FA1412001594837 (Forum Jan. 22, 2015) (“The Panel finds Respondent’s use of the disputed domain names to feature parked hyperlinks containing links in competition with Complainant’s legal services is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), and it is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”), Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees), Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”).
The evidence furnished by Complainant establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
Policy ¶ 4(b) sets forth a nonexclusive list of five circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s web site or location or of a product of service on the respondent‘s web site or location.
(v) the respondent has provided false contact details to the registrar.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use, based upon one or more of the foregoing grounds articulated in the Policy and upon additional grounds adopted by administrative panels over the years. First, Respondent is using the Domain Name to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation or endorsement of its web site, as described in Policy ¶ 4(b)(iv). The evidence does not establish whether Respondent is actually selling Complainant’s products (or a counterfeit) or fraudulently representing that it does, collecting money from the customer and then not delivering the products. Under either scenario, however, Respondent’s conduct fits squarely within the circumstances described in Policy ¶ 4(b)(iv) and is manifest evidence of bad faith registration and use. AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy ¶ 4(b)(iv)), Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”).
Second, Respondent’s conduct fits within the circumstances described in Policy ¶ 4(b)(iv) also by using the Domain Name and the resolving web site to generate pay-per-click revenues. Pay-per-click sites are common on the Internet. Under the most common forms of business arrangements relating to these sites, when a visitor to the site clicks on one of the links which appear there, the site sponsor receives compensation from the various web site owners who are forwarded from the site. In most cases, the site sponsor receives compensation based upon the number of hits the downstream web site owners get from being linked to Respondent’s web site. AllianceBernstein LP v. Texas International Property Associates, Case No. D2008-1230 (WIPO, 2008) (the domain name resolved to a search directory site with links to third-party vendors and the panel inferred that the respondent received click-through-fees when site visitors clicked on those links), Brownells, Inc. v. Texas International Property Associates, Case No. D2007-1211 (WIPO, 2007), (finding in similar cases that a respondent intentionally attempted to attract internet searchers for commercial gain). Respondent’s use of the Domain Name is commercial also because the sponsors of the various web sites forwarded from Respondent’s web site benefit from the subsequent interest and purchases of those who visit the sites. UDRP panels have held that there only needs to be commercial gain sought by some party for the use to be commercial. Focus Do It All Group v. Athanasios Sermbizis, Case No. D2000-0923 (WIPO,2000) (finding that “[I]t is enough that commercial gain is being sought for someone” for a use to be commercial).
Next, Respondent registered and is using the Domain Name, which fully incorporates the well-known MATTRESS FIRM mark. As discussed above, however, Respondent has no connection with that mark or its owner, the Complainant. This may not fit precisely within any of the circumstances set forth in Policy ¶ 4(b) but that paragraph recognizes that mischief can manifest in many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005). Given the nonexclusive nature of Policy ¶ 4(b), the use of a domain name that is confusingly similar to a trademark with which the respondent has no connection has frequently been held to be evidence of opportunistic bad faith. Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) (“[T]he fact that Respondent chosen [sic] to register a well-known mark to which [it] has no connections or rights indicates that [it] was in bad faith when registering the domain name at issue.”), Google LLC v. Noboru Maruyama / Personal, FA 2001001879162 (Forum Mar. 3, 2020) (“the registration and use of domain name that is confusingly similar to a trademark with which the respondent has no connection has frequently been held to be evidence of bad faith.”).
Finally, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the Domain Name in November 2021 (WHOIS report submitted as Complaint Exhibit 3 shows creation date). Complainant’s MATTRESS FIRM mark was registered in 2011, and is well-known if not famous throughout the United States. Respondent copied it verbatim into the Domain Name, passes off as Complainant and purports to offer Complainant’s goods using Complainant’s name and registered logo. There is no question that it knew of Complainant and its mark when it registered the Domain Name. Given the non-exclusive nature of Policy ¶ 4(b), registering a confusingly similar domain name with actual knowledge of a complainant’s rights in its mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Complainant alleges that Respondent’s conduct also falls within the circumstances described in Policy ¶ 4(b)(iii). Policy ¶ 4(b)(iii) reads as follows: “you [the respondent] have registered the domain name primarily for the purposes of disrupting the business of a competitor” (emphasis supplied). By using the Domain Name to attract Internet traffic to a web site which passes off as Complainant, Respondent is clearly disrupting the business of Complainant. And, by purportedly offering to sell Complainant’s mattresses, and referring Internet traffic to other mattress companies, Respondent is also competing with Complainant.
There is, however, another aspect of the concept of competition to be considered. In order for a respondent’s conduct to fall within Policy ¶ 4(b)(iii), the competition must exist before the domain name is registered. Otherwise, the respondent’s conduct would not fall within the language of ¶ 4(b)(iii), paraphrased as “you registered the domain name primarily to disrupt the business of a competitor.” The competition must exist before the registration. In this case the Complainant and the Respondent were not competitors when the Domain Name was registered in November 2021 (WHO IS report submitted as Complaint exhibit 3 shows the creation date). Any actual competition between them arose only after Respondent registered and began using the Domain Name. Even then, it is questionable whether disrupting the Complainant’s business was Respondent’s primary purpose in registering the Domain Name. On the contrary, the evidence strongly suggests that Respondent’s primary motive was not so much to harass or annoy an existing commercial adversary as it was to trade upon Complainant’s goodwill and reputation and profit commercially by creating confusion as to the source, sponsorship, affiliation or endorsement of its site, which is properly addressed under Policy ¶ 4(b)(iv). Respondent’s conduct does not fall within the circumstances stated in Policy ¶ 4(b)(iii).
That said, using a confusingly similar domain name to attract Internet traffic to a web site which passes off as and disrupts the business of a complainant is still bad faith. Given the non-exclusive nature of Policy ¶ 4(b), using a confusingly similar domain name to disrupt the business of a complainant by passing off as and impersonating that complainant is sufficient evidence of bad faith to meet the requirements of Policy ¶ 4(a)(iii). Respondent’s primary intent in registering and continuing to use the Domain Name is less important than the effect of his conduct. Respondent knew or should have known the disruptive impact its conduct would have upon Complainant’s business. Respondent went forward with its plans in spite of that and this demonstrates bad faith independently of Policy ¶ 4(b)(iii). Red Wing Shoe Company, Inc. v. wei zhang / Magdalena Jennifer / Mu Yan / Carolina Rodrigues / Fundacion Comercio Electronico, FA1911001873163 (Forum Jan. 3, 2020).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mattressfirm.us.com> Domain Name be TRANSFERRED from Respondent to Complainant
Charles A. Kuechenmeister, Panelist
April 22, 2022
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