BBY Solutions, Inc. v. Grant Ritzwoller
Claim Number: FA1611001703389
Complainant is BBY Solutions, Inc. (“Complainant”), represented by Matthew Misna, Minnesota, USA. Respondent is Grant Ritzwoller (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bestbuyus.com> (‘the Domain Name’) registered with 1&1 Internet SE.
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.
Dawn Osborne of Palmer Biggs IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 17, 2016; the Forum received payment on November 17, 2016.
On November 19, 2016, 1&1 Internet SE confirmed by e-mail to the Forum that the <bestbuyus.com> domain name is registered with 1&1 Internet SE and that Respondent is the current registrant of the name. 1&1 Internet SE has verified that Respondent is bound by the 1&1 Internet SE 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 22, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 12, 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@bestbuyus.com. Also on November 22, 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 response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On December 20, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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’s contentions can be summarized as follows:
Complainant is the owner of the BEST BUY trade mark and it has been using this mark through a predecessor in interest since at least as early as 1983 in connection with retail stores offering consumer electronics and appliances. It has a website at bestbuy.com.
The Domain Name is confusingly similar to and incorporates the distinctive BEST BUY mark in its entirety with the addition of the descriptive term ‘US’ relating to Complainant’s principle place of business. The addition of the generic top level domain such as .com is also irrelevant in determining similarity.
Respondent has no rights or legitimate interests in the Domain Name. Respondent has no relationship with and has no permission from Complainant to use the Domain Name. The Domain Name was registered more than 30 years after Complainant began using its BEST BUY mark. Respondent is not commonly known by the Domain Name.
The Domain Name is being used for fraudulent activity including the use of the Domain Name in fraudulent emails to Complainant’s vendors requesting product samples. The writer misrepresents himself as senior buyer for Best Buy Co. Inc. Brandon.Todd@bestbuyus.com. To further create the illusion of being an employee of Complainant the landing page attached to the Domain Name redirects to Complainant’s login page for an internal web site. Previously it pointed to Complainant’s official Geek Squad services. This is not a legitimate noncommercial or fair use of the web site.
Respondent is creating confusion amongst third parties for the purpose of commercial gain. The use of the mark shows that Respondent is aware of Complainant and its activities.
Complainant sent notice of its rights to Respondent. No response was received.
B. Respondent
Respondent failed to submit a formal Response in this proceeding.
Complainant and its group companies are owners of trade marks for thr BEST BUY word mark and a logo mark with first use recorded as 1983.
The Domain Name was registered in 2015. It has been used to send e mails purporting to be from Complainant requesting product samples.
Paragraph 15(a) of the Rule 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 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 (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.”).
Identical and/or Confusingly Similar
The Domain Name consists of Complainant's BEST BUY mark (which is registered in the USA for retail store services with first use recorded as 1983), the geographical term ‘US’ and the gTLD .com. The Panel agrees that the addition of the geographical term ‘US’ does not prevent the Domain Name from being confusingly similar to Complainant's trade mark pursuant to the Policy. The fact that Complainant’s name is based in the USA adds to any likely confusion. See Microsoft Corporation v Thong Tran Thanh, FA 1653187 (Forum Jan 21, 2016) (determining that confusing similarity exists where a domain name contains a complainant’s mark in its entirety and differs only by the addition of a generic term).
The gTLD .com does not serve to distinguish the Domain Name from the BEST BUY mark, which is the distinctive component of the Domain Name.
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the policy to a mark in which Complainant has rights.
As such the Panel holds that Complainant has satisfied the first limb of the Policy.
Rights or Legitimate Interests
Respondent is not commonly known by the Domain Name, is not using it to offer bona fide goods and services and is not making a legitimate noncommercial or fair use of the name. The Domain Name has been used for email addresses which reflect Complainant’s corporate name, chosen in the hope that someone might mistakenly see an email coming from the Domain Name as a genuine email from Complainant. Complainant has provided some evidence of use of the Domain Name to obtain sample goods. As such the Domain Name was registered for deceptive purposes which cannot form the basis for a right or legitimate interest. See Chevron Intellectual Property LLC v Thomas Webber/Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum March 15, 2016) finding that Respondent had failed to provide a bona fide offering of goods and services or any legitimate or noncommercial use as it had been passing itself off to solicit money under false pretenses). As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registered and Used in Bad Faith
The use of the Domain Name to point to Complainant’s web sites shows knowledge of Complainant and its activities on the part of Respondent. Respondent has not answered Complainant or given any explanation as to why it has registered the Domain Name except to indicate to the Centre that it was willing to transfer the name to Complainant. Complainant has also provided some evidence that the Domain Name has been used for the purposes of trying to obtain goods in a fraudulent manner. Panels have found bad faith where a respondent uses another’s mark in a domain in an attempt to confuse unsuspecting users for commercial gain. See Perot Sys. Corp v Perot.net, FA 95312 (forum Aug 29, 2000). As such the Domain Name has clearly been registered and used in bad faith for the purposes of causing and taking advantage of confusion on the Internet, and the Panel holds that Complainant has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bestbuyus.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: December 21, 2016
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