Micro Electronics, Inc. v. Milen Radumilo
Claim Number: FA2111001974823
Complainant is Micro Electronics, Inc. (“Complainant”), represented by Joseph M. Manak of Scarinci Hollenbeck, New York, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <microcenter.us>, registered with CommuniGal Communication 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 29, 2021; the Forum received payment on November 29, 2021.
On November 30, 2021, CommuniGal Communication Ltd. confirmed by e-mail to the Forum that the <microcenter.us> domain name is registered with CommuniGal Communication Ltd. and that Respondent is the current registrant of the name. CommuniGal Communication Ltd. has verified that Respondent is bound by the CommuniGal Communication Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On November 30, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 20, 2021 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@microcenter.us. Also on November 30, 2021, 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 December 26, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 to the usTLD Dispute Resolution Policy (“Rules”). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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 contends as follows:
Complainant is an electronics retailer in the business of selling computer games, video game controllers and accessories, computer speakers, tablets, headphones, computers, laptops, computer software and networking products and services, electronic hardware, accessories and related services, such as computer repair. Complainant operates its business online and in several brick and mortar locations,
Complainant has rights in the MICRO CENTER mark through its registrations with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <microcenter.us> domain name is identical or confusingly similar to Complainant’s MICRO CENTER mark as it incorporates the mark, removes the first letter “r”, and adds the “.us” country code top-level domain (“ccTLD”).
Respondent lacks rights and legitimate interests in the <microcenter.us> domain name. Respondent is not commonly known by the at-issue domain name, nor has Complainant authorized or licensed Respondent to use its MICRO CENTER mark in the at-issue domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead has used the domain name for a variety of purposes including offering competing products, hosting competing parked, pay-per-click links, hosting malware, and inactively holding the at-issue domain name.
Respondent registered and/or uses the <microcenter.us> domain name in bad faith. Respondent has exhibited a pattern of bad faith registration and use. Respondent has used the domain name for a variety of purposes including offering competing products, hosting competing parked, pay-per-click links, hosting malware, and inactively holding the disputed domain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the MICRO CENTER mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the MICRO CENTER trademark.
Respondent uses the at-issue domain name to offer competing products; host competing pay-per-click links; host malware; and at times to hold passively.
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the MICRO CENTER mark with the USPTO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <microcenter.us> domain name consists of Complainant’s MICRO CENTER trademark less its domain name impermissible space and with the mark’s first letter “r” removed, with all followed by the top-level domain name “.us.” Under the Policy, the slight differences between Respondent’s domain name and Complainant’s trademark do nothing to distinguish the <microcenter.us> domain name from Complainant’s MICRO CENTER mark. Therefore, the Panel concludes that Respondent’s <microcenter.us> domain name is confusingly similar or identical to Complainant’s MICRO CENTER trademark. See Myspace, Inc. v. Kang, FA 672160 (Forum June 19, 2006) (finding that the <myspce.com> domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity); see also, Lockheed Martin Corp. v. Roberson, FA 323762 (Forum Oct. 19, 2004) (holding that the ccTLD “.us” does not differentiate the disputed domain name from Complainant’s mark).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name. See Nike, Inc. v. Dias, FA 135016 (Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where respondent used complainant’s mark without authorization).
The WHOIS information for <microcenter.us> indicates that “Milen Radumlio” is the domain name’s registrant and there is nothing in the record that indicates that Respondent is otherwise known by the <microcenter.us> domain name. As such, the Panel finds that Respondent is not commonly known by the at-issue domain name under Policy ¶ 4(c)(iii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant shows that Respondent uses the at-issue domain for a variety of functions. The domain name has addressed sites that offer malware; has redirected internet traffic to GameStop, a competitor of Complainant; has hosted parked page displaying pay-per-click links; and has at times failed to link to any web content at all. However, not one of Respondent’s uses of the <microcenter.us> domain name indicates Respondent has ever made a bona fide offering of goods or services under Policy ¶ 4(c)(ii), or a non-commercial or fair use of the at-issue domain name under Policy ¶ 4(c)(iv). See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see additionally CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel finds that Respondent’s use of the <cheepcaribbean.com> name to promote links in competition with Complainant’s travel agency services does not fall within Policy ¶ 4(c)(i)’s bona fide offering of goods or services, nor does it amount to a legitimate noncommercial or fair use described in Policy ¶ 4(c)(iii).”); Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and absent any evidence tending to prove Respondent has rights or legitimate interests in respect of the at-issue domain name conclusively demonstrates Respondent’s lack of rights and lack of legitimate interests.
Respondent’s <microcenter.us> domain name was registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent has suffered over 100 adverse UDRP decisions. Respondent’s prior history of domain name abuse exhibits a pattern of cybersquatting and thus suggests Respondent’s bad faith in the instant case pursuant to Policy ¶ 4(b)(ii). See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”).
Next and as mentioned above regarding rights and legitimate interests, Respondent has used the at-issue domain name to host competing hyperlinks. Doing so shows bad faith disruption of Complainant’s business for commercial gain and demonstrates Respondent’s bad faith registration and use of <microcenter.us> under Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also CAN Financial Corporation v. William Thomson / CNA Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services); see additionally 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).”).
Furthermore and as also mentioned above, Respondent’s used <microcenter.us> to act as a vector for malicious software. Indeed, hazard warnings are triggered alerting those attempting to browse to the domain name of it associated dangers. Respondent’s use of domain name to distribute malware clearly indicates Respondent’s bad faith registration and use of the at-issue domain name pursuant to Policy ¶ 4(a)(iii). See eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com has been registered just few days after Enom.com, therefore could not have been regstere, FA1505001621663 (Forum July 2, 2015) (“In addition, Respondent has used the disputed domain name to install malware on Internet users’ devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii).”).
Additionally, Respondent has at times held the <microcenter.us> domain name passively which is also considered evidence of bad faith under Policy ¶ 4(a)(iii). See CommScope, Inc. of North Carolina v. Zhuang Yan / WANGYONG, FA 1764026 (Forum Feb. 14, 2018) (“Respondent’s domain names do not have resolving websites. Using a domain name to resolve to an inactive website (or no website at all) indicates bad faith registration and use.”).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microcenter.us> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 27, 2021
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