WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
BBY Solutions, Inc. v. [Unknown / "Domain Administrator"]
Case No. D2017-1169
1. The Parties
Complainant is BBY Solutions, Inc. of Richfield, Minnesota, United States of America ("United States"), represented by Bird & Bird LLP, United Kingdom of Great Britain and Northern Ireland ("United Kingdom").
Respondent is [Unknown / "Domain Administrator"], United States.
2. The Domain Name and Registrar
The disputed domain name <bestbuy.feedback> is registered with TLD Registrar Solutions Ltd. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 14, 2017. On June 14, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 15, 2017, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy" or "UDRP"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on June 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 10, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on July 11, 2017.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on July 14, 2017. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Complainant, BBY Solutions, Inc. is an international consumer electronics corporation with operations in the United States, Canada and Mexico. Complainant has been using the mark BEST BUY since as early as 1983 in connection with retail stores offering consumer electronics and appliances. Complainant currently operates more than 1,500 BEST BUY retail stores in North America. Complainant also owns the domain name <bestbuy.com>, which is used to market consumer electronics, household appliances and related services to consumers.
The actual identity of Respondent is unknown. Respondent registered the disputed domain name on July 25, 2016. The disputed domain name currently resolves to a website that appears to provide reviews from consumers concerning Complainant's BEST BUY retail store services.
5. Parties' Contentions
Complainant asserts that it owns and has used the BEST BUY mark in connection with (i) retail stores offering consumer electronics and appliances since as early as 1983; and (ii) installation and maintenance of personal computers and other home office products and related merchandise since as early as 1989. Complainant further asserts that it owns rights in the BEST BUY mark by virtue of having obtained trademark registrations for the BEST BUY mark in various jurisdictions, including the United States.
Complainant contends that the disputed domain name is confusingly similar to Complainant's BEST BUY mark because it contains the BEST BUY mark in its entirety. Complainant also contends that confusing similarity is heightened because Respondent has used Complainant's details to register the disputed domain name and has included Complainant's telephone number, address, BEST BUY logo and other indicia associated with Complainant on the website appearing at the disputed domain name.
Complainant argues that Respondent lacks any rights or legitimate interests in the disputed domain name because Respondent (a) is not commonly known by the disputed domain name, (b) has never been given permission by Complainant to register or use the disputed domain name, and (c) has engaged in deceptive practices by misleadingly passing off the disputed domain name and associated website as connected to Complainant. Complainant also contends that Respondent's use of the disputed domain name contravenes the stated purpose of ".feedback" domain names, which are intended for use by brand owners/businesses to communicate or engage with their consumers.
Finally, Complainant asserts that Respondent registered and has used the disputed domain names in bad faith since Respondent has masked his or her identity by using Complainant's contact details to register the disputed domain name, and because Respondent has posted a website at the disputed domain name that misleadingly suggests a connection to Complainant, when none exists. Complainant also asserts that many of the customer reviews appearing on the website at the disputed domain name are actually copied from other legitimate sources on the Internet, such as "www.yelp.com". Lastly, Complainant argues that given Respondent's actions it is apparent that the primary purpose for Respondent's registration of the disputed domain name is to generate some form of income for Respondent, either through the website posted at the disputed domain name or by selling or transferring the disputed domain name to Complainant.
Respondent did not reply to Complainant's contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond to the Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant's claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. The Panel, however, may draw appropriate inferences from a respondent's default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"); see also The Knot, Inc. v. In Knot We Trust LTD, WIPO Case No. D2006-0340.
A. Identical or Confusingly Similar
Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0 at section 1.2.1. Complainant has provided evidence that it owns and uses the BEST BUY mark in connection with its retail stores offering consumer electronics, appliances and related services in the United States. Complainant has also provided evidence that it obtained trademark registrations for the BEST BUY mark in the United States and elsewhere before Respondent registered the disputed domain name.
With Complainant's rights in the BEST BUY mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the generic Top-Level Domain ".com") is identical or confusingly similar with Complainant's mark. See B & H Foto & Electronics Corp. v. Domains by Proxy, Inc. / Joseph Gross, WIPO Case No. D2010-0842. The threshold for satisfying this first element is low and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is confusingly similar to Complainant's BEST BUY mark as it incorporates the BEST BUY mark in its entirety at the head of the disputed domain name. The addition of the generic Top-Level Domain ("gTLD") extension ".feedback" does not distinguish the disputed domain name from Complainant's BEST BUY mark, as the dominant component of the disputed domain name is BEST BUY. WIPO Overview 3.0, sections 1.7 and 1.11. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant's BEST BUY mark and in showing that the disputed domain name is identical or confusingly similar to that trademark.
B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production to the respondent, the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
From the record in this case, it is questionable whether Respondent has rights or a legitimate interest in the disputed domain name. While the disputed domain name includes the gTLD extension "feedback," which arguably could be viewed as suggesting a domain name connected to a website for consumers to provide commentary or criticism, such is not the case here. The evidence provided by Complainant, none of which is contested by Respondent, reveals that Respondent has concealed his or her identity and has sought to pass off the disputed domain name as connected to Complainant by (i) registering the disputed domain name using Complainant's contact information, and (ii) using indicia associated with Complainant, such as Complainant's logo, telephone number and address, on the website posted at the disputed domain name. Moreover, some of the content posted at the website associated with the disputed domain names appears to have been copied from other websites, such as "www.yelp.com", thereby suggesting that the website at the disputed domain name is pretextual in nature. Such actions by Respondent belie the possibility that Respondent registered the disputed domain name for a legitimate noncommercial purpose and in their totality make it more likely than not that Respondent registered the disputed domain name to profit in some way.
Given that Complainant has established with sufficient evidence that it owns rights in the BEST BUY mark, and given Respondent's above noted actions and failure to file a response, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances indicating bad faith registration and use on the part of a domain name registrant, namely:
"(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out of pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location."
In the present case, Respondent has registered the disputed domain name that fully incorporates Complainant's BEST BUY mark with the ".feedback" gTLD extension. Although this combination suggests a domain name associated with a website where commentary or criticism about Complainant could be posted or viewed, it is likely that consumers might initially view the disputed domain name, which wholly consists of the BEST BUY mark, as linked to Complainant and/or to a website where Complainant is soliciting views from consumers regarding its products and services. That initial association with Complainant has not been dispelled by Respondent, and, to the contrary, appears to have been played upon in bad faith by Respondent. The evidence before the Panel, none of which is contested by Respondent, shows that Respondent sought to increase the association between the disputed domain name and Complainant by (i) registering the disputed domain name using Complainant's contact information, and (ii) including links, references and other indicia on the website posted at the disputed domain name to make it appear that the website is a legitimate website of Complainant. Such actions make it more likely than not that Respondent opportunistically targeted Complainant and its BEST BUY mark in bad faith.
Moreover, given that the uncontested evidence shows that the website posted at the disputed domain name appears to include customer reviews copied from other legitimate websites such as "www.yelp.com", it is likewise more likely than not that Respondent created a pretextual website to mask his or her activities. Such actions, which are not disputed by Respondent who chose not to participate in this proceeding, further confirm that Respondent's registration and use of the disputed domain name was not undertaken for a legitimate reason or purpose but to somehow profit in bad faith from the disputed domain name.
Accordingly, the Panel finds that Complainant succeeds under this element of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name, <bestbuy.feedback>, be transferred to Complainant.
Date: July 24, 2017