BBY Solutions, Inc. v. Anonymize, Inc.
Claim Number: FA2201001980284
Complainant is BBY Solutions, Inc. (“Complainant”), represented by Giulio E. Yaquinto, Texas, USA. Respondent is Anonymize, Inc. (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <geeksqud.com>, registered with Epik Inc..
The undersigned certifies that he has acted independently and impartially and to the best of his 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 January 13, 2022; the Forum received payment on January 13, 2022.
On January 13, 2022, Epik Inc. confirmed by e-mail to the Forum that the <geeksqud.com> domain name is registered with Epik Inc. and that Respondent is the current registrant of the name. Epik Inc. has verified that Respondent is bound by the Epik 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 January 17, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 7, 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@geeksqud.com. Also on January 17, 2022, 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 February 11, 2022, 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 engages in the business of computer installation, maintenance, repair and design services and other technical support services. Complainant has rights in the GEEK SQUAD mark through its registration of the mark in the United States in 2003.
Complainant alleges that the disputed domain name is confusingly similar to its GEEK SQUAD mark as it consists of a misspelling of the mark (omitting the letter “A”), and merely adding the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the GEEK SQUAD mark in any way. Respondent failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use of the disputed domain name. Instead, Respondent uses the disputed domain to redirect internet users to a rotating series of web sites, including to one of Complainant’s legitimate websites, and to a site that offers competing products. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith as Respondent uses the disputed domain name to redirect internet users to a rotating series of web sites. Respondent also engages in the practice of typosquatting by including a misspelled version of Complainant’s GEEK SQUAD mark. Respondent had actual knowledge of Complainant’s rights in the GEEK SQUAD mark due to the longstanding use and fame of the mark in commerce. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark GEEK SQUAD dating back to at least 2003 and uses it to market computer-related services.
The disputed domain name was registered in 2004.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent uses the disputed domain to redirect internet users to a rotating series of web sites, including to one of Complainant’s legitimate websites, and to a site that offers 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 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 disputed domain name consists of a misspelling of Complainant’s GEEK SQUAD mark (omitting the letter “A”), and merely adding the “.com” generic top-level domain (“gTLD”). Registration of a domain name that contains a misspelled mark while adding a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (“Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Anonymize, Inc.”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain to redirect internet users to a rotating series of web sites, including to one of Complainant’s legitimate websites, and to a site that offers competing products. This is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See MoneyGram International, Inc. v. Domain Admin / Whois Privacy Corp., FA1698585 (Forum Nov. 28, 2016) (“Where a domain name redirects Internet users to a rotating series of webpages, such use does not demonstrate rights or legitimate interests within the meaning of the Policy.”); see also Better Existence with HIV v. AAA, FA 1363660 (Forum Jan. 25, 2011) (finding that “even though the disputed domain name still resolves to Complainant’s own website, Respondent’s registration of the disputed domain name in its own name fails to create any rights or legitimate interests in Respondent associated with the disputed domain name under Policy ¶ 4(a)(ii)”); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant); see also Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). And the Panel 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 uses the disputed domain name to redirect internet users to rotating web sites, some of which offer competing products. This may be evidence of bad faith per Policy ¶ 4(b)(iii). See Natural Supplement Association, Incorporated d/b/a Experimental and Applied Sciences, Inc. v. Private Registration- Rnew, FA 1365571 (Forum Feb. 9, 2011) (“[R]egistration and use of the disputed domain name to redirect Internet users to a series of websites offering products in competition with [c]omplainant constitutes a disruption of [c]omplainant’s business and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum Feb. 20, 2015) (“This Panel agrees that Respondent’s use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”); see also Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). Thus, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv).
Further, Respondent engages in the practice of typosquatting by including a misspelled version of Complainant’s GEEK SQUAD mark in the disputed domain name. Incorporating a complainant’s mark and introducing small typographical errors and is evidence of bad faith per Policy ¶ 4(a)(iii). See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (finding the respondent engaged in typosquatting—and thus registered and used the at-issue domain names in bad faith—where the names consisted of the complainant’s mark with small typographical errors introduced therein). Therefore the Panel finds that Respondent engaged in the practice of typosquatting which is evidence of bad faith registration and use per 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 <geeksqud.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 14, 2022
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