ADP, LLC v. Milen Radumilo
Claim Number: FA1708001744742
Complainant is ADP, LLC (“Complainant”), represented by Susan E. Hollander of c/o Venable LLP, California, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <myacessadp.com>, registered with Domain Grabber 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 August 15, 2017; the Forum received payment on August 15, 2017.
On August 16, 2017, Domain Grabber LLC confirmed by e-mail to the Forum that the <myacessadp.com> domain name is registered with Domain Grabber LLC and that Respondent is the current registrant of the name. Domain Grabber LLC has verified that Respondent is bound by the Domain Grabber 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 August 16, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 5, 2017 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@myacessadp.com. Also on August 16, 2017, 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 September 7, 2017, 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, ADP, LLC, is a worldwide provider of business outsourcing solutions. In connection with this business, Complainant uses the ADP and ADP ACCESS marks to promote its goods and services. Complainant has rights in the ADP and ADP ACCESS marks based upon registration with the United States Patent and Trademark Office (“USPTO”) (i.e. ADP—Reg. No. 3,054,139, registered Jan. 31, 2006; ADP ACCESS—Reg. No. 3,768,501, registered Mar. 30, 2010).
2. Respondent’s <myacessadp.com>[1] is confusingly similar as it appends the generic term “my,” a misspelling of “access,” and the generic top-level-domain (“gTLD”) “.com” to Complainant’s fully incorporated mark.
3. Respondent lacks rights and legitimate interests in the domain name. Respondent is not commonly known by the domain name and Complainant has not authorized Respondent’s use of the ADP marks.
4. Further, Respondent fails to use <myacessadp.com> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or otherwise fair use; instead, <myacessadp.com> utilizes typosquatting to resolve to a parked page displaying Complainant’s trademarks and a series of links to third-party advertisers. Respondent also offers the domain name for sale for $10,888.00.
5. Respondent registered and uses <myacessadp.com> in bad faith. Respondent offers the domain name for sale in excess of registration costs. Respondent derives revenue through pay-per-click advertisements and links to third-party advertisers hosted on the domain name’s resolving website. Respondent used a domain name privacy service to conceal its identity and fails to make an active use of the domain name.
6. Respondent had actual knowledge of Complainant’s rights in the ADP mark. Respondent utilized a typosquatted version of Complainant’s mark to capitalize on the substantial goodwill associated with Complainant’s ADP marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the ADP and ADP ACCESS marks. Respondent’s domain name is confusingly similar to Complainant’s ADP and ADP ACCESS marks. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <myacessadp.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.”).
Complainant has rights in the ADP and ADP ACCESS marks based upon registration with the USPTO (i.e. ADP—Reg. No. 3,054,139, registered Jan. 31, 2006; ADP ACCESS—Reg. No. 3,768,501, registered Mar. 30, 2010). Registration with a trademark authority such as the USPTO is sufficient to establish rights in a mark per Policy 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark).
Next, Complainant contends Respondent’s <myacessadp.com> is confusingly similar to Complainant’s marks as it appends the generic term “my,” a misspelling of “access,” and the gTLD “.com” to Complainant’s marks. Generic terms and gTLDs have been found insufficient to defeat a test of confusing similarity per Policy ¶ 4(a)(i); likewise, removal of a letter from a complainant’s mark renders the result visually and aurally similar in a way that have been found to be confusingly similar per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (the addition of a generic term and gTLD are insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).); see also Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (finding, “The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”). The Panel agrees with Complainant’s contentions and finds Respondent’s <myacessadp.com> to be confusingly similar to Complainant’s ADP and ADP ACCESS marks.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <myacessadp.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.
First, Complainant asserts Respondent is not commonly known by the <myacessadp.com> and that Complainant did not authorize Respondent’s use of the ADP or ADP ACCESS marks. In lieu of a Response, WHOIS information can support a finding that a respondent is not commonly known by a domain name; similarly, a complainant’s uncontradicted assertion that it has not authorized a respondent’s use of a domain name is further evidence to show that the respondent is not commonly known by the domain name per 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); see also Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The WHOIS information of record names “Milen Radumilo” as the registrant of the <myacessadp.com> domain name. The Panel therefore finds Respondent is not commonly known by the domain name.
Next, Complainant argues Respondent fails to use <myacessadp.com> in connection with a bona fide offering of goods or services or for a legitimate noncommercial or otherwise fair use. Instead, <myacessadp.com> resolves to a parked page displaying Complainant’s trademarks and a series of links to third-party advertisers. Resolution to a page containing a complainant’s marks and pay-per-click advertising unrelated to a complainant does not represent a noncommercial or otherwise fair use of a complainant’s mark per Policy ¶ 4(c)(i) & (iii). See Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”). The Panel finds Respondent failed to use the <myacessadp.com> domain name for a bona fide offer per Policy ¶ 4(c)(ii).
Next, Complainant argues <myacessadp.com> utilizes typosquatting in an attempt to trade on the goodwill associated with Complainant’s mark. Use of typosquatting to gain from Internet users typographical mistakes does not warrant a finding of rights and legitimate interests in a domain name per Policy ¶ 4(a)(ii). See LTD Commodities LLC v. Party Night, Inc., FA 165155 (Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”). The Panel agrees and finds this is further evidence of Respondent’s lack of rights and legitimate interests in the <myacessadp.com> domain name.
Further, Complainant argues Respondent offers the <myacessadp.com> domain name for sale for $10,888.00. Offers of a domain name for sale is further evidence of a respondent’s lack of rights and legitimate interests in the applicable domain name per Policy ¶ 4(a)(ii). See Enterprise Holdings, Inc. v. Huang Jia Lin, FA1504001614086 (Forum May 25, 2015) (“Accordingly, the Panel finds that Respondent’s general attempt to sell the disputed domain name is further evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii).”). The Panel agrees with Complainant and finds additional evidence of Respondent’s lack of rights and legitimate interests in the <myacessadp.com> domain name.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
First, Complainant has provided evidence that Respondent offers the <myacessadp.com> domain name for sale in excess of registration costs. The offer of a domain name for sale in excess of registration costs is indicative of bad faith per Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name). The Panel agrees and finds evidence of Respondent’s bad faith use of the <myacessadp.com> domain name.
Next, Complainant argues Respondent resolves to a parked webpage and presumably derives revenue through pay-per-click advertisements and links to third-party advertisers. Pay-per-click advertising unrelated to a complainant on a domain name displaying the complainant’s mark represents bad faith per Policy ¶ 4(b)(iv). See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). The Panel agrees.
Additionally, Complainant has shown that Respondent used a domain name privacy service to conceal its identity. Use of a domain name privacy service is indicative of bad faith use per Policy ¶ 4(a)(iii). See Medco Health Solutions, Inc. v. Whois Privacy Protection Service, Inc., D2004-0453 (WIPO Aug. 25. 2004) (holding that the respondent’s efforts to disguise its true identity by using the privacy protection feature of the Registrar was an example of bad faith conduct).
Complainant contends without contrary evidence in the record that Respondent fails to make an active use of the <myacessadp.com> domain name. Failure to make demonstrable preparations to use a domain name can further show a respondent’s bad faith per Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Respondent utilized a typosquatted version of Complainant’s mark to capitalize on the goodwill associated with Complainant’s ADP marks. Typosquatting in order to capitalize off the typographical mistakes of Internet users represents bad faith per Policy ¶ 4(a)(iii). See Under Armour, Inc. v. JEFF RANDALL, FA1410001585022 (Forum Nov. 18, 2014) (finding that the respondent’s <unerarmour.com> domain name constitutes typosquatting of the complainant’s UNDER ARMOUR mark, which is evidence of bad faith pursuant to Policy ¶ 4(a)(iii)). Here, Respondent removed a letter “c” from Complainant’s ADP ACCESS mark to form the <myacessadp.com> domain name. The Panel agrees with Complainant and finds further evidence of Respondent’s bad faith registration and use of the disputed domain name.
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 <myacessadp.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: September 12, 2017
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