BBY Solutions, Inc. v. Open Concept
Claim Number: FA2112001978077
Complainant is BBY Solutions, Inc. (“Complainant”), represented by Giulio E. Yaquinto of Pirkey Barber PLLC, Texas, USA. Respondent is Open Concept (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mybestbuysupport.com>, registered with GoDaddy.com, LLC.
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 22, 2021; the Forum received payment on December 22, 2021.
On December 23, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <mybestbuysupport.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 December 28, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 18, 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@mybestbuysupport.com. Also on December 28, 2021, 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 January 19, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant is the owner of the BEST BUY trade mark which has been used through a predecessor in interest since 1983 in relation to retail stores offering consumer electronics and appliances. It owns numerous trade mark registrations for BEST BUY in the USA and has a My Best Buy program where customers can earn points.
The Domain Name registered in 2020 incorporates the BEST BUY mark in its entirety. The addition of the descriptive terms ‘my’ and ‘support’ and the gTLD “.com” does not prevent the similarity of the Domain Name to the Complainant’s mark.
Respondent has no rights or legitimate interests in the Domain Name. Respondent is not commonly known by the Domain Name. Respondent has no relationship with the Complainant and no authorization from the Complainant to use the Complainant’s mark in any way.
Respondent is using the Domain Name for commercial pay per click links including those offering competing products and services. This is not a legitimate noncommercial or fair use of the Domain Name or a bona fide offering of goods or services.
Respondent registered and is using the Domain Name in opportunistic bad faith with actual knowledge of the Complainant’s mark. The competing use referred to above creates a likelihood of confusion.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the BEST BUY trade mark which has been used through a predecessor in interest since 1983 in relation to retail stores offering consumer electronics and appliances. It owns numerous trade mark registrations for BEST BUY in the USA. It has a My Best Buy program for customer to earn points.
The Domain Name registered in 2020 has been used for competing commercial pay per click links.
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 Domain Name in this Complaint combines the Complainant’s BEST BUY mark (registered in the USA for retail services relating to consumer electronics with first use recorded as 1983), the generic terms ‘my’ and ‘support’ and the gTLD “.com”.
Panels have held that the addition of generic words does not prevent confusing similarity between a domain name and a complainant’s mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i).). Accordingly the Panel holds that the addition of the generic terms ‘my’ and ‘support’ do not prevent confusing similarity between the Complainant’s mark and the Domain Name.
The gTLD “.com” does not serve to distinguish the Domain Name from the Complainant’s BEST BUY mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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). The use of the Domain Name is commercial and so is not legitimate noncommercial fair use.
It is clear from the evidence that the Respondent has used the page attached to the Domain Name to link to commercial pay per link links offering products and services not connected with the Complainant. It does not make it clear that there is no commercial connection with the Complainant. See Ferring B.V. v. Shanshan Huang / Melissa Domain Name Services, FA1505001620342 (Forum July 1, 2015) (“Placing unrelated third party links for the benefit of a respondent indicates a lack of a bona fide offering of goods or services, and a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), respectively.”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Respondent is using the Domain Name to point to pay per click links to make profit from promoting services and goods not associated with the Complainant in a disruptive and confusing manner. Use for pay per click links indicates bad faith being disruptive of the Complainant’s business and diverting customers for commercial gain. See Plain Green, LLC v. wenqiang tang, FA1505001621656 (Forum July 1, 2015) (finding that the respondent’s use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith).
Additionally the use of the generic word ‘my’ mirroring the Complainant’s program for its customers indicates the Respondent was aware of the Complainant and its business at the time of registration of the Domain Name.
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under 4(b)(iii) and 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 <mybestbuysupport.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: January 20, 2022
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