BBY Solutions, Inc. v. Nikesh kumar / madhavienterprises.com
Claim Number: FA2201001979314
Complainant is BBY Solutions, Inc. (“Complainant”), represented by Giulio E. Yaquinto of Pirkey Barber PLLC, Texas, USA. Respondent is Nikesh kumar / madhavienterprises.com (“Respondent”), Delhi.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <itgeekssquads.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 6, 2022; the Forum received payment on January 6, 2022.
On January 7, 2022, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <itgeekssquads.com> domain name is 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 January 10, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 31, 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@itgeekssquads.com. Also on January 10, 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. Respondent did however send emails to the Forum, see below.
On February 1, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 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 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
Complainant states that it provides computer installation, maintenance, repair and design services and other technical support services to customers. Complainant has rights in the GEEK SQUAD mark through its registration of the mark in the United States in 2003.
Complainant alleges that the disputed domain name is confusingly similar to its GEEK SQUAD mark as it incorporates a plural version of the mark in its entirety and merely adds the generic term “IT” (which stands for “information technology” along with the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the GEEK SQUAD mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name resolves to a webpage that offers competing products and services.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith as Respondent offers products and services that compete with Complainant’s business. Respondent had actual knowledge of Complainant’s rights in the GEEK SQUAD mark due to the long standing use and notoriety of the mark in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding. It its emails to the Forum Respondent states, in pertinent part: “Our company registered in a different country, not in the USA as you very well aware of it its online portal we call to support any part of the country. Even you can go with about us, disclaimer clearly it mentions. So, we are not using any company name and any identification of others.” And: “For what you send me this ?? WEBSITE : Itgeekssquads.com?? Its already registered company in india. We are support based company .Go through the website every disclaimer give on it. We are not using any company name. We are independent service provider not linked with any other company.”
Complainant has rights in the mark GEEK SQUAD dating back to 2003 and uses it to provide computer installation, maintenance, repair and design services.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that offers products and services that compete with those of Complainant.
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(f), 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also 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”).
The disputed domain name incorporates a plural version of Complainant’s mark in its entirety and merely adds the generic term “IT” (which stands for “information technology” along with the “.com” generic top-level domain (“gTLD”). Such changes does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See TXDC, L.P. v. Kevin Americain, FA2106001953061 (Forum July 26, 2021) (“The disputed domain name <zalesoutlets.com> incorporates Complainant's registered ZALES OUTLET trademark, omitting the space, adding a letter "S" to form a plural, and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Nikesh kumar / madhavienterprises.com”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name resolves to a webpage that offers competing products and services. Use of a disputed domain name to resolve to a webpage that offers competing products and services is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (“use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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).”). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent states that it is not registered in the USA and refers to the disclaimer on the resolving website. However, the resolving website displays a US address and phone number under “Contact Us”. And The “Disclaimer” page of the resolving website does not make any mention of Complainant, much less indicate that the resolving website is not associated with Complainant. The “disclaimer” page states that it is governed by the laws of the state of Delaware, USA. Thus the Panel finds that the evidence indicates that Respondent does offer services in the USA and that there is no effective disclaimer. Further, even if there were a disclaimer, it would not be dispositive for the instant case: according to paragraph 3.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “where the overall circumstances of a case point to the respondent’s bad faith, the mere existence of a disclaimer cannot cure such bad faith”.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website offers products and services that compete with Complainant’s business. Use of a disputed domain name to offer products and services that compete with a Complainant’s business may be evidence of bad faith per Policy ¶ 4(b)(iv). See Ontel Products Corporation v. waweru njoroge, FA 1762229 (Forum Dec. 22, 2017) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iii) and (iv) through the respondent’s registration and use of the infringing domain name to reference the complainant’s products and offer competitive and/or counterfeit products). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <itgeekssquads.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 1, 2022
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