BBY Solutions, Inc. v. Domain Admin, C/O ID#10760 / Privacy Protection Service INC d/b/a PrivacyProtect.org
Claim Number: FA1705001730225
Complainant is BBY Solutions, Inc. ("Complainant"), represented by Matthew Mlsna, Minnesota, U.S.A. Respondent is Domain Admin, C/O ID#10760 / Privacy Protection Service INC d/b/a PrivacyProtect.org ("Respondent"), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bestbuy24x7solutions.com>, registered with BigRock Solutions Ltd.
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 May 4, 2017; the Forum received payment on May 4, 2017.
On May 4, 2017, BigRock Solutions Ltd. confirmed by email to the Forum that the <bestbuy24x7solutions.com> domain name is registered with BigRock Solutions Ltd. and that Respondent is the current registrant of the name. BigRock Solutions Ltd. has verified that Respondent is bound by the BigRock Solutions Ltd. 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 May 5, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 25, 2017 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@bestbuy24x7solutions.com. Also on May 5, 2017, 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 May 31, 2017, 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, 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 <bestbuy24x7solutions.com> in December 2016, in the name of a privacy registration service. Complainant asserts that "24x7 solutions" is a descriptive term relating to Complainant's business, which includes offering 24/7 technical support solutions and services. Complainant states that Respondent has no affiliation, connection, endorsement, or association with Complainant, and has never requested nor received any authorization, permission, or license to use Complainant's BEST BUY mark. Complainant asserts that Respondent is not commonly known by the mark or the disputed domain name, and that Respondent is using the domain name for a website that promotes technical support services that compete with those offered by Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 <bestbuy24x7solutions.com> corresponds to Complainant's registered BEST BUY mark, with the addition of the phrase "24x7 solutions" (which is descriptive of Complainant's services) and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., BBY Solutions, Inc. v. Right Click Info, FA 1647441 (Forum Dec. 20, 2015) (finding <bestbuysupport.com> confusingly similar to BEST BUY). The Panel finds that the disputed domain name is confusingly similar to Complainant's mark.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's well-known mark without authorization. The only apparent use for the disputed domain name has been for a website promoting services that compete directly with those offered by Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See EMVCO, LLC c/o Visa Holdings v. Lee Jackson / Visa EMV U.S.A. inc, FA 1649795 (Forum Dec. 29, 2015).
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 has been 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 is using the disputed domain name to promote services that compete directly with those offered by Complainant. Under the circumstances, the Panel infers that Respondent registered the domain name with this use in mind. See EMVCO, LLC c/o Visa Holdings v. Lee Jackson / Visa EMV U.S.A. inc, supra (finding bad faith registration and use under similar circumstances). 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 <bestbuy24x7solutions.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 2, 2017
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