BBY Solutions, Inc. v. Suman Lata
Claim Number: FA1604001668703
Complainant is BBY Solutions, Inc. (“Complainant”), represented by Matthew Mlsna, Minnesota, USA. Respondent is Suman Lata (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <geekzquad.com>, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 4, 2016; the Forum received payment on April 4, 2016.
On April 5, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <geekzquad.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 April 6, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 26, 2016 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@geekzquad.com. Also on April 6, 2016, 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 April 29, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant uses the GEEK SQUAD mark in connection with its business providing computer installation, maintenance, repair and design services, and other technical support services. Complainant has registered the GEEK SQUAD mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,943,643, registered December 26, 1995), which demonstrates rights in the mark.
2. Respondent registered the <geekzquad.com> domain name in July 2015.
3. Respondent’s <geekzquad.com> domain name is confusingly similar to the GEEK SQUAD mark as it incorporates the mark in its entirety, less the space, and alters the mark by merely substituting the letter “z” for the letter “s,” and by adding the generic top-level domain (“gTLD”) “.com.”
4. Respondent has no rights or legitimate interests in the <geekzquad.com> domain name. Respondent is not commonly known by the domain name.
5. Respondent is neither making a bona fide offering of goods or services nor a legitimate noncommercial or fair use with the <geekzquad.com> domain name. Rather, the domain name offers competing technical support services that are identical to those of Complainant.
6. Respondent’s registration and use of the <geekzquad.com> domain name serves as a disruption of Complainant’s legitimate business purposes pursuant to Policy ¶ 4(b)(iii) because Respondent offers competing services to those of Complainant. Respondent has attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website.
7. In light of the fame and notoriety of Complainant's GEEK SQUAD mark, it is inconceivable that Respondent could have registered the <geekzquad.com> domain name without actual or constructive knowledge of Complainant's rights in the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.[1]
Complainant holds trademark rights for the GEEK SQUAD mark. Respondent’s domain name is confusingly similar to Complainant’s GEEK SQUAD mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <geekzquad.com> domain name, and that Respondent registered and uses the domain name 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 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 Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <geekzquad.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <geekzquad.com> domain name. First, Complainant asserts that Respondent is not commonly known by the domain name. The WHOIS information regarding the domain name lists “Suman Lata” as registrant. Complainant also asserts that it has not given Respondent permission to use its GEEK SQUAD mark. Therefore, the Panel agrees there is no basis to find Respondent commonly known by the <geekzquad.com> domain name per Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Further, Complainant argues that Respondent is neither making a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the <geekzquad.com> domain name. Rather, the domain name offers identical competing technical support services to those of Complainant. Where a respondent uses a domain name that is confusing similar to a mark in which a complainant has rights and with the domain name resolves to a website that offers competing services, such use does not constitute a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Alcon, Inc. v. ARanked, FA 1306493 (Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel agrees that Respondent’s use of the <geekzquad.com> domain name constitutes neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds Complainant has satisfied 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 <geekzquad.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: May 9, 2016
[1] Although Respondent did not submit a Response to the Complaint in accordance with the Rules, in an email to the Forum, Respondent wrote, among other things, “you can have the domain but you have to buy.”
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