Marvell International Ltd. v. Danut Furdui
Claim Number: FA2005001896932
Complainant is Marvell International Ltd. (“Complainant”), represented by Lisa Greenwald-Swire of Fish & Richardson, P.C., Minneapolis, USA. Respondent is Danut Furdui (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <marvell.group>, registered with NameSilo, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 19, 2020; the Forum received payment on May 19, 2020.
On May 19, 2020, NameSilo, LLC confirmed by e-mail to the Forum that the <marvell.group> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 May 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 10, 2020 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@marvell.group. Also on May 21, 2020, 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 June 15, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a world leader in producing semiconductor, integrated circuit, and related technologies. Complainant is a large, multinational corporation with a current market cap in excess of $17.39 billion USD. Complainant has established a strong reputation and commercial presence in every corner of the world, employing over 5,000 people through its offices in the United States, Bermuda, China, Denmark, Germany, India, Israel, Japan, Korea, the Netherlands, Singapore, Spain, Switzerland, Taiwan, the United Kingdom, and Vietnam. Complainant has rights in the MARVELL mark through its registration of the mark with various trademark offices around the world, in particular in the United States in 2001. Additionally, Complainant has common-law rights in the MARVELL mark dating back to 1995.
Complainant alleges that the disputed domain name is identical or confusingly similar to its mark, as it merely adds the “.group” top-level domain to the mark.
According to Complainant, Respondents has no rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been licensed, authorized, or otherwise permitted by Complainant to use Complainant’s mark. Furthermore, Respondent’s use is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use, as Respondent is merely parking the domain name with links to competing goods and services. Furthermore, Respondent is offering the disputed domain name for sale.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith. Specifically, Respondent is attempting to sell the disputed domain name. Additionally, Respondent has an established pattern of bad faith registrations of domain names that infringe on other famous brands. Further, Respondent is attempting to disrupt Complainant’s business and attract Internet users for financial gain by offering competing hyperlinks. Finally, Respondent had constructive or actual knowledge of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for the mark MARVELL and uses it to provide semiconductor, integrated circuit, and related products. The mark was registered in 2001.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2019.
The resolving website displays advertising links to products and services that compete with those of Complainant.
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 Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name is identical to Complainant’s mark, as it merely adds the “.group” top-level domain to the mark; this is not sufficient to distinguish a disputed domain name from the mark under Policy ¶ 4(a)(i). See Bittrex, Inc. v. Privacy protection service - whoisproxy.ru, FA 1759828 (Forum Jan. 12, 2018) (“The Panel here finds that the <bittrex.market> domain name is identical to the BITTREX mark under Policy ¶4(a)(i).”). Therefore, the Panel finds that the <marvell.group> domain name is identical to Complainant’s MARVELL mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, relevant WHOIS information can be used as evidence to show a respondent is or is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS of record identifies the Respondent as “Danut Furdui”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent has parked the domain name with links to competing goods and services. Using a disputed domain name to offer competing hyperlinks may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Therefore, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant provides evidence to show that Respondent offers the disputed domain name for sale, but fails to provide evidence that Respondent is asking for a price in excess of out of pocket costs. Therefore, Complainant has failed to prove a violation of Policy ¶ 4(b)(i).
Complainant provides evidence to show that Respondent registered numerous domain names containing trademarks, but it fails to cite UDRP decisions, or to provide other evidence, that such registrations were made in bad faith under the Policy. Therefore, Complainant has failed to prove a violation of Policy ¶ 4(b)(ii).
Complainant does not provide evidence to show that Respondent had actual knowledge of Complainant’s mark when it registered the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent is attempting to disrupt Complainant’s business and attract Internet users for financial gain because the resolving website displays advertising links to products and services that compete with those of Complainant. Registering a disputed domain name merely to offer competing hyperlink may be evidence of bad faith under Policy ¶¶ 4(b)(iii) and/or (iv). See Transamerica Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1798316 (Forum Aug. 20, 2018) (“Respondent's use of the domain name to link to competitors of Complainant, presumably generating pay-per-click or referral fees for Respondent, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv).”). Therefore, the Panel finds that Respondent registered and used the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and/or (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <marvell.group> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 15, 2020
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