BBY Solutions, Inc. v. Asmat Ullah Janjuna
Claim Number: FA2102001933515
Complainant is BBY Solutions, Inc ("Complainant"), represented by Matthew Mlsna, Minnesota, USA. Respondent is Asmat Ullah Janjuna ("Respondent"), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bestbuymobilestore.com>, registered with FastDomain 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 25, 2021; the Forum received payment on February 25, 2021.
On February 25, 2021, FastDomain Inc. confirmed by email to the Forum that the <bestbuymobilestore.com> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain 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 1, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 22, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@bestbuymobilestore.com. Also on March 1, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 March 26, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 operates retail stores offering consumer electronics and appliances, including mobile phones, and provides installation and maintenance services for personal computers and other products. Complainant and its predecessor in interest have used the BEST BUY mark in connection with this business since at least as early as 1983. Complainant owns numerous United States trademark registrations for BEST BUY and related marks.
Respondent registered the disputed domain name <bestbuymobilestore.com> via a privacy registration service in January 2021. The domain name is being used for a website that offers or purports to offer mobile phones under the title BEST BUY MOBILES, displaying a tag design logo similar to that used by Complainant, and using distinctive icons that also appear on Complainant's website. Complainant states that Respondent previously used two other domain names incorporating Complainant's BEST BUY mark, <bestbuymobiles.com> and <bestbuymobiles.co>, until Complainant succeeded in having the corresponding websites shut down. Complainant states further that Respondent has no relationship, affiliation, connection, endorsement, or association with Complainant; that Respondent has never received any authorization, permission, or license to use Complainant's mark; and that Respondent is not commonly known by the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <bestbuymobilestore.com> is confusingly similar to its BEST BUY mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <bestbuymobilestore.com> incorporates Complainant's registered BEST BUY trademark, omitting the space, adding the generic terms "mobile" and "store," and appending the ".com" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Le Shi Internet Information & Technology (Beijing) Corp. v. bo liu / Shen Zhen Shi Dong Fang Zhi Zhou Wang Luo Ke Ji You Xian Gong Si, FA 1697276 (Forum Nov. 8, 2016) (finding <letvmobilestore.com> confusingly similar to LETV); BBY Solutions, Inc. v. Osi Ben / Express Wireless, FA 1589081 (Forum Dec. 12, 2014) (finding <bestbuygsm.com> confusingly similar to BEST BUY). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for a commercial website that appears to be designed to create the false impression of a connection to Complainant, and that offers for sale products that compete with those offered by Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Wahl Clipper Corp. v. Ya Lei Zhu, FA 1932888 (Forum Mar. 18, 2021) (finding lack of rights or interests in similar circumstances); BBY Solutions, Inc. v. Osi Ben / Express Wireless, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register a domain name incorporating Complainant's registered mark. The domain name is being used for a website that displays Complainant's mark and a logo similar to Complainant's, along with other content apparently taken from Complainant's website, and that offers for sale products that compete with those offered by Complainant. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Wahl Clipper Corp. v. Ya Lei Zhu, supra (finding bad faith where domain name was used to pass off as complainant to sell unauthorized and possibly counterfeit products); BBY Solutions, Inc. v. NAMECHEAP NAMECHEAP / NAMECHEAP, FA 1753003 (Forum Nov. 7, 2017) (finding bad faith where BEST BUY mark was used to promote competing products); BBY Solutions, Inc. v. Osi Ben / Express Wireless, supra (same). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bestbuymobilestore.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 29, 2021
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