BBY Solutions, Inc. v. John K / Ballu Balwanta / vikas kumar
Claim Number: FA1901001825765
Complainant is BBY Solutions, Inc. ("Complainant"), represented by Matthew Mlsna of BBY Solutions, Inc., Minnesota, USA. Respondents are John K, Ballu Balwanta, and vikas kumar ("Respondents"), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <1800geeksquad.org>, <geeksquadphonenumber.net>, <best-buy-geek-squad.net>, <geeksquads.co>, <geek-squad-webroot.net>, <geeksquad-usa.com>, <geeksquadtech.net>, <geeksquadprotectionplan.net>, <geeksquadtech.org>, <geeksquadonlinesupport.com>, and <webrootgeeksquad.net>, registered with GoDaddy.com, LLC.
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 January 17, 2019; the Forum received payment on January 17, 2019.
On January 18, 2019, GoDaddy.com, LLC confirmed by email to the Forum that the <1800geeksquad.org>, <geeksquadphonenumber.net>, <best-buy-geek-squad.net>, <geeksquads.co>, <geek-squad-webroot.net>, <geeksquad-usa.com>, <geeksquadtech.net>, <geeksquadprotectionplan.net>, <geeksquadtech.org>, <geeksquadonlinesupport.com>, and <webrootgeeksquad.net> domain names are registered with GoDaddy.com, LLC and that one of the Respondents is the current registrant of each of the domain names. GoDaddy.com, LLC has verified that Respondents are bound by the GoDaddy.com, LLC registration agreement and have 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 21, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 11, 2019 by which Respondents could file a Response to the Complaint, via email to all entities and persons listed on Respondents' registrations as technical, administrative, and billing contacts, and to postmaster@1800geeksquad.org, postmaster@geeksquadphonenumber.net, postmaster@best-buy-geek-squad.net, postmaster@geeksquads.co, postmaster@geek-squad-webroot.net, postmaster@geeksquad-usa.com, postmaster@geeksquadtech.net, postmaster@geeksquadprotectionplan.net, postmaster@geeksquadtech.org, postmaster@geeksquadonlinesupport.com, postmaster@webrootgeeksquad.net. Also on January 21, 2019, the Written Notice of the Complaint, notifying Respondents of the email addresses served and the deadline for a Response, was transmitted to Respondents via post and fax, to all entities and persons listed on Respondents' registrations as technical, administrative and billing contacts.
Having received no response from Respondents, the Forum transmitted to the parties a Notification of Respondent Default.
On February 17, 2019, 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[s]" 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 Respondents.
Complainant requests that the domain names be transferred from Respondents to Complainant.
A. Complainant
Complainant offers computer installation, maintenance, repair, and design services and other technical support services under the GEEK SQUAD mark. Complainant and a predecessor in interest have used the mark for this purpose continuously since at least as early as 1994. Complainant owns numerous U.S. trademark registrations for GEEK SQUAD and variations thereof dating back to 1995. Complainant also owns longstanding trademark rights in BEST BUY, which it has used for many years in connection with computer installation and maintenance services and other goods and services, and for which it also owns numerous U.S. trademark registrations.
Two of the disputed domain names, <geeksquads.co> and <1800geeksquad.org>, were registered in June 2018 by Respondents Ballu Balwanta and vikas kumar, respectively. The remaining nine disputed domain names were registered in August 2018 by Respondent John K. The disputed domain names all are being used for very similar websites that promote technical support services nearly identical to those offered by Complainant. The websites include Complainant's GEEK SQUAD and BEST BUY marks, along with a logo that is nearly identical to that used by Complainant and a color scheme that incorporates Complainant's orange and black trade dress. Each site includes a U.S. toll-free telephone number (in most instances, the same number), and they share other characteristics, including IP addresses. Complainant states that Respondents have no relationship, affiliation, connection, endorsement, or association with Complainant; have not been authorized, permitted, or licensed to use Complainant's marks; and are not commonly known by the disputed domain names. Complainant notes that the same Respondents were found in a previous proceeding under the Policy to have registered and used other domain names incorporating Complainant's marks in bad faith. See BBY Solutions, Inc. v. Dev Kumar / John Kies / Nitin Tyagi / Devendra Tyagi / Nitin Kumar / White Apple / Ballu Balwanta / vikas kumar, FA 1798780 (Forum Sept. 5, 2018) (ordering transfer of <geeksquad-bestbuy.org>, <geeksquad-phonenumber.org>, <geeksquad-protection.org>, <geeksquad-support.org>, <1800-geek-squad.com>, <best-buy-geek-squad.org>, <best-buy-service.com>, <bestbuy-geek-squad.com>, <call-geek-squad.com>, <geek-squad-pricing.com>, <geek-squad-tech-support.org>, <geek-squad-webroot.com>, <webroot-geek-squad.com>, <geeksquadplan.org>, <geeksquadsupport.org>, <geeksquadtechsupports.com>, <best-buy-geek-squad.com>, <geeksquad-tech-support.com>, <bestbuygeeksquadphonenumber.com>, <geek-squad-tech-support.net>, <geek-squad-online-support.com>, <geeksquad-customercare.com>, <geeksquad-customerservice.com>, <geeksquad-tech.com>, <geeksquadbestbuyphonenumber.com>, <geeksquadprotection.com>, <the-geek-squad.com>, <geeksquad-pricing.com>, and <geeksquad-support.com>).
Complainant contends on the above grounds that each of the disputed domain names is confusingly similar to its GEEK SQUAD mark; that Respondents lack rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondents
Respondents failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondents lack rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are 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 Respondents' 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 Management, 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.").
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") provides that a "complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder."
Complainant has provided evidence of such common control similar to that found sufficient in BBY Solutions, Inc. v. Dev Kumar et al., supra (which included all three of the Respondents in the present matter). The Panel finds that the Respondents here represent aliases of a single person or entity, and therefore may be treated as the same domain name holder.
The disputed domain names <1800geeksquad.org>, <geeksquadphonenumber.net>, <best-buy-geek-squad.net>, <geeksquads.co>, <geek-squad-webroot.net>, <geeksquad-usa.com>, <geeksquadtech.net>, <geeksquadprotectionplan.net>, <geeksquadtech.org>, <geeksquadonlinesupport.com>, and <webrootgeeksquad.net> all incorporate Complainant's registered GEEK SQUAD trademark (and in one instance its BEST BUY mark as well), omitting the space and in some instances substituting a hyphen, and adding various generic and related terms and various top-level domains. These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., BBY Solutions, Inc. v. Dev Kumar et al., supra (finding <1800-geek-squad.com>, <geeksquad-phonenumber.org>, <best-buy-geek-squad.org>, <geek-squad-webroot.com>, <geeksquad-tech.com>, and other domain names confusingly similar to Complainant's GEEK SQUAD and BEST BUY marks). Accordingly, the Panel considers each of the disputed domain names to be confusingly similar to Complainant's registered mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondents lack rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondents 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 names incorporate Complainant's registered mark without authorization, and they are being used to promote services that compete directly with those offered by Complainant. Complainant has made a prima facie case that Respondents lacks rights and legitimate interests in the domain names, and Respondents have 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 Respondents lack rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondents 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, [Respondents] intentionally attempted to attract, for commercial gain, Internet users to [Respondents'] 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 [Respondents'] web site or location or of a product or service on [Respondents'] web site or location."
For essentially the same reasons as those articulated by the Panel in BBY Solutions, Inc. v. Dev Kumar et al., supra, which involved the same Respondents and nearly identical domain names used in a nearly identical manner, the Panel finds that Respondents registered and are using the disputed domain names 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 <1800geeksquad.org>, <geeksquadphonenumber.net>, <best-buy-geek-squad.net>, <geeksquads.co>, <geek-squad-webroot.net>, <geeksquad-usa.com>, <geeksquadtech.net>, <geeksquadprotectionplan.net>, <geeksquadtech.org>, <geeksquadonlinesupport.com>, and <webrootgeeksquad.net> domain names be TRANSFERRED from Respondents to Complainant.
David E. Sorkin, Panelist
Dated: February 18, 2019
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