BBY Solutions, Inc. v. Domain Admin / Whois Privacy Corp.
Claim Number: FA1611001702588
Complainant is BBY Solutions, Inc. (“Complainant”), represented by Matthew Mlsna, Minnesota, United States. Respondent is Domain Admin / Whois Privacy Corp. (“Respondent”), Bahamas.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bestbuyspecial.com>, registered with Internet Domain Service BS Corp.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 11, 2016; the Forum received payment on November 11, 2016.
On November 15, 2016, Internet Domain Service BS Corp confirmed by e-mail to the Forum that the <bestbuyspecial.com> domain name is registered with Internet Domain Service BS Corp and that Respondent is the current registrant of the name. Internet Domain Service BS Corp has verified that Respondent is bound by the Internet Domain Service BS Corp 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 16, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 6, 2016 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@bestbuyspecial.com. Also on November 16, 2016, 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 formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default. Respondent sent several E-Mails to the Forum, see below.
On December 12, 2016, 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 uses the BEST BUY mark in connection with retail stores offering consumer electronics and appliances. Complainant has registered the BEST BUY in the United States in 1991.
According to Complainant, the disputed domain name is confusingly similar to its mark as it wholly incorporates the mark, merely adding the descriptive term “special” and the “.com” generic top-level domain (“gTLD”).
Complainant alleges that Respondent has no rights or legitimate interests in the domain name. Respondent is not commonly known by the domain name, and Respondent has never requested or received any authorization, permission, or license from Complainant to use the BEST BUY mark in any way. Further, Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to advertise a fake promotion in the form of a $1,000.00 gift card for use at Complainant’s retail stores. The website to which the disputed domain name resolves also appears to be used in a phishing scam, where it poses a series of questions to users and then directs the users to a series of other pages where personal information such as address, telephone number, date of birth, and gender are requested.
Further, says Complainant, Respondent registered and is using the domain name in bad faith. First, Respondent uses the domain name to pass itself off as Complainant. Second, Respondent uses the domain name to engage in phishing. Third, Respondent uses a privacy service to obscure its identity. Finally, because of the extensive use of Complainant’s mark, it is clear that Respondent registered the domain name with at least constructive knowledge of Complainant’s mark and rights therein.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, in an E-Mail to the Forum, Respondent stated: “Sure I’ll just transfer the domain, let me know how to proceed thanks.”
C. Additional Submissions
In an E-Mail to the Forum, Complainant states that it “would like to proceed with the UDRP and is seeking a decision on the merits, given that we have already paid the filing fee associated with this proceeding. Panelists have issued decisions on the merits in cases where a respondent has consented to the transfer of a domain name. For example, in Home TLC, Inc. v. Domain Admin / Whois Foundation, FA 1503001612147 (NAF May 6, 2015), the Panelist did so and noted that the ‘consent-to-transfer’ approach is but one way for cybersquatters to avoid adverse findings against them. See also Enterprise Holdings, Inc. v. DOMAIN FOR SALE c/o Wesley Rendel, FA 1504001614741 (NAF May 28, 2015).”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
In the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
The Panel notes that Complainant has requested that it proceed to analyze the three elements of the Policy despite Respondent’s consent to transfer the disputed domain name. The Panel finds that such an analysis is not required in the circumstances of the present case.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <bestbuyspecial.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 13, 2016
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