BBY Solutions, Inc. v. Julian Brand / Air Travel Deals Solutions
Claim Number: FA1803001778949
Complainant is BBY Solutions Inc. (“Complainant”), represented by Matthew Mlsna Matthew Mlsna of BBY Solutions Inc., Minnesota, USA. Respondent is Julian Brand / Air Travel Deals Solutions (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <geeksquadnumber.com>, <geeksquadbestbuy.com>, and <geeksquadprices.com>, registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 26, 2018; the Forum received payment on March 26, 2018.
On March 27, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <geeksquadnumber.com>, <geeksquadbestbuy.com>, and <geeksquadprices.com> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 30, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 19, 2018 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@geeksquadnumber.com, postmaster@geeksquadbestbuy.com, postmaster@geeksquadprices.com. Also on March 30, 2018, 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 25, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 names be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <geeksquadnumber.com>, <geeksquadbestbuy.com>, and <geeksquadprices.com> domain names are confusingly similar to Complainant’s GEEK SQUAD and/or BEST BUY marks.
2. Respondent does not have any rights or legitimate interests in the <geeksquadnumber.com>, <geeksquadbestbuy.com>, and <geeksquadprices.com> domain names.
3. Respondent registered and uses the<geeksquadnumber.com>, <geeksquadbestbuy.com>, and <geeksquadprices.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the GEEK SQUAD and BEST BUY marks, which it uses in connection with offering computer goods and services. Complainant holds registrations for the GEEK SQUAD mark (Reg. No. 2,744,658, registered Jul. 29, 2003) and for the BEST BUY mark (Reg. No. 3,416,626, registered Apr. 29, 2008) with the United States Patent and Trademark Office (“USPTO”).
Respondent registered the <geeksquadnumber.com>, <geeksquadbestbuy.com>, and <geeksquadprices.com> domain names on February 10, 2018, and uses them to divert Internet users to websites featuring competing goods and services
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.”).
Complainant has rights in the GEEK SQUAD and BEST BUY marks through its registrations with the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <geeksquadnumber.com>, <geeksquadbestbuy.com>, and <geeksquadprices.com> domain names incorporate one or more of Complainant’s marks, and add descriptive terms and a gTLD. These changes do not distinguish the disputed domain names from Complainant’s marks. See YETI Coolers, LLC v. Randall Bearden, FA 16060016880755 (Forum Aug. 10, 2016) (finding that the words “powder coating” in the <yetipowdercoating.com> domain name are “merely explicative and directly refer to some of the services rendered by the Complainant” and, therefore, create an “irrefutable confusing similarity” to complainant’s YETI mark); see also Hewlett-Packard Development Company, L.P. v. Yangxiaoyi / Qingyuan Tianheng Trading Company Ltd., FA 1625637 (Forum June 23, 2015) (“The combination of a complainant’s mark does not allow a respondent to avoid a finding of confusing similarity under Policy ¶4(a)(i).”). Accordingly, the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s GEEK SQUAD and/or BEST BUY marks.
The Panel finds that complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also 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”).
Complainant asserts that Respondent has no rights or legitimate interests in the <geeksquadnumber.com>, <geeksquadbestbuy.com>, and <geeksquadprices.com> domain names, and is not commonly known by the domain names. Complainant states that Respondent has no relationship with Complainant and is not authorized to use the BEST BUY or GEEK SQUAD marks. The WHOIS information for the disputed domain names identify Respondent as “Julian Brand / Air Travel Deals Solutions.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also 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.”).
Complainant also contends that Respondent is not using the <geeksquadnumber.com>, <geeksquadbestbuy.com>, or <geeksquadprices.com> domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant argues that Respondent uses the disputed domain names to divert Internet users to its own competing websites and provides relevant screenshots showing that Respondent offers technical support and software installation services. Therefore, the Panel finds that Respondent is not using the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). See Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that Complainant provides freelance talent services, and that Respondent competes with Complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use).
The Panel finds that complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent registered and is using the <geeksquadnumber.com>, <geeksquadbestbuy.com>, and <geeksquadprices.com> domain names in bad faith. Complainant argues that Respondent attracts Internet users to the disputed domain names to compete with Complainant for commercial gain. The Panel agrees and finds that this constitutes bad faith under Policy ¶ 4(b)(iv). See 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)).
The Panel finds that complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <geeksquadnumber.com>, <geeksquadbestbuy.com>, and <geeksquadprices.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 26, 2018
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