BBY Solutions, Inc. v. NAMECHEAP NAMECHEAP / NAMECHEAP
Claim Number: FA1710001753003
Complainant is BBY Solutions, Inc. (“Complainant”), represented by Matthew Mlsna, Minnesota, USA. Respondent is NAMECHEAP NAMECHEAP / NAMECHEAP (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bestbuycoffeemakers.com>, registered with eNom, LLC.
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 October 10, 2017; the Forum received payment on October 10, 2017.
On October 12, 2017, eNom, LLC confirmed by e-mail to the Forum that the <bestbuycoffeemakers.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, 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 October 13, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 2, 2017 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@bestbuycoffeemakers.com. Also on October 13, 2017, 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 November 7, 2017, 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 operates retail stores offering consumer electronics and appliances. It uses its BEST BUY mark to promote its products and services and has rights in the mark through registration in the United States in 2008.
According to Complainant, the disputed domain name is confusingly similar to its mark because it incorporates the BEST BUY mark in its entirety—less the space—and appends the descriptive term “coffeemakers” and the generic top-level domain “gTLD” “.com.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent does not have rights or legitimate interests in the disputed domain name. Complainant has not licensed or otherwise authorized Respondent to use its BEST BUY mark in any fashion, and Respondent is not commonly known by the disputed domain name. Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to divert Internet users seeking Complainant’s website to Respondent’s competing website. Complainant cites UDRP precedents to support its position.
Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to attract Internet traffic and commercially benefit from the goodwill of the BEST BUY mark by creating confusion as to the source, sponsorship, affiliation, or endorsement of its website by offering competing services. Further, due to Complainant’s registration of its mark, Respondent had constructive notice of Complainant’s rights in the BEST BUY mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark BEST BUY and uses it to market consumer electronics and appliances.
Complainant’s rights in its mark date back to at least 2008.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name resolves to a website that competes directly with that of Complainant, by offering competing products.
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 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.”).
The disputed domain name is confusingly similar to Complainant’s mark because it incorporates the mark in its entirety—less the space—and appends the descriptive term “coffeemakers” and the gTLD “.com.” The elimination of spacing and addition of a descriptive term and gTLD do not negate confusing similarity in a Policy ¶ 4(a)(i) analysis. See Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Research Now Group, Inc. v. Pan Jing, FA 1735345 (Forum July 14, 2017) (“The … elimination of spacing [is] considered irrelevant when distinguishing between a mark and a domain name.”). As such, the Panel finds that the disputed domain name is confusingly similar, in the sense of the Policy, to Complainant’s mark.
Complainant has not licensed or otherwise authorized Respondent to use its BEST BUY mark in any fashion. A lack of contradicting evidence in the record that a respondent was authorized to use a complainant’s mark in a domain name can be evidence of a lack of rights and legitimate interests. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). Additionally, WHOIS information can be used to support a finding under Policy ¶ 4(c)(ii) that a respondent is not commonly known by a disputed domain name especially where there is no response. See 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.). Here, the WHOIS information of record identifies registrant as “NAMECHEAP NAMECHEAP”. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to divert Internet users from Complainant’s website to Respondent’s competing website for Respondent’s commercial benefit: the resolving website offers coffee-making appliances that directly compete with Complainant’s consumer appliance business. Use of a confusingly similar domain name to divert Internet users to a respondent’s competing website is not a bona fide offering of goods or services or legitimate noncommercial or fair use. See j2 Global Canada, Inc. and Landslide Technologies, Inc. v. VIJAY S KUMAR / STRATEGIC OUTSOURCING SERVICES PVT LTD, FA 1647718 (Forum Jan. 4, 2016) (finding that the disputed domain purports to offer for sale goods and services in the field of electronic marketing, which directly overlap with the services covered by Complainant’s registrations and offered by Complainant online, and therefore Respondent does not have rights or legitimate interests through its competing use). Therefore, the Panel finds that Respondent is not using the disputed domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use, and it finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) 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, Respondent is using the confusingly similar domain name to attract Internet traffic and commercially benefit from the goodwill of the BEST BUY mark by resolving to a website that offers competing products. Use of a confusingly similar domain name to create confusion as to the source, sponsorship, affiliation, or endorsement of its website is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark). Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under 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 <bestbuycoffeemakers.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 7, 2017
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