Dell Inc. v. Milen Radumilo
Claim Number: FA2001001880095
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Virginia, USA. Respondent is Milen Radumilo (“Respondent”), International.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell-latitude.com>, registered with Tucows Domains Inc..
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 22, 2020; the Forum received payment on January 22, 2020.
On January 23, 2020, Tucows Domains Inc. confirmed by e-mail to the Forum that the <dell-latitude.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 January 24, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 13, 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@dell-latitude.com. Also on January 24, 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 February 17, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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, Dell Inc., is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has rights in the DELL and LATITUDE marks based upon the registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., DELL- Reg. No. 2,236,785, registered Apr. 9, 1999; LATITUDE- Reg. No. 3,465,293, registered Jul. 15, 2008). Respondent’s <dell-latitude.com> domain name is confusingly similar to Complainant’s marks as Respondent incorporates both the DELL and LATITUDE marks in their entirety and merely adds, a hyphen and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <dell-latitude.com> domain name. Respondent is not licensed or authorized to use Complainant’s DELL and LATITUDE marks and is not commonly known by the disputed domain name. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to divert Internet users to third-party websites; one which displays pornographic content and the other is in connection with the installation of malware.
Respondent registered and uses the <dell-latitude.com> domain name in bad faith. Respondent attempts to divert Internet users to third party websites. Respondent also uses the disputed domain name in connection with the malware installation. Furthermore, Respondent used a privacy service to conceal its identity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon Complainant’s uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <dell-latitude.com> domain name.
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”).
Complainant claims rights in the DELL and LATITUDE marks based upon registration with the USPTO. Registration with USPTO sufficiently establishes 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)). Complainant provides copies of its USPTO registrations for the DELL and LATITUDE marks (e.g., DELL- Reg. No. 2,236,785, registered Apr. 9, 1999; LATITUDE- Reg. No. 3,465,293, registered Jul. 15, 2008). The Panel finds that Complainant has sufficiently demonstrated its rights in the DELL and LATITUDE marks per Policy ¶ 4(a)(i).
Complainant next claims that Respondent’s <dell-latitude.com> domain name is confusingly similar to Complainant’s marks. Specifically, Complainant argues Respondent merely adds a hyphen, and a gTLD to Complainant’s DELL and LATITUDE marks. Additions of a hyphen, or a gTLD does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy).The Panel finds that the <dell-latitude.com> domain name is confusingly similar to Complainant’s DELL and LATITUDE marks per Policy ¶ 4(a)(i).
Complainant has proven this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). The Panel finds Complainant has made a prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <dell-latitude.com> domain name as Respondent is not authorized to use Complainant’s DELL and LATITUDE marks and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged, under Policy ¶ 4(c)(ii). See 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.); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). Additionally, lack of evidence in the record to indicate that the respondent has been authorized to register a domain name using a complainant’s mark supports a finding that respondent does not have rights or legitimate interests in the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). A privacy service was used by Respondent but was lifted as a result of this proceeding. The WHOIS information of record identifies registrant as “Milen Radumilo”. Furthermore, there is no evidence in the record to suggest Respondent was authorized to use Complainant’s DELL and LATITUDE marks. The Panel finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Complainant argues that Respondent is not using the <dell-latitude.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent’s <dell-latitude.com> domain name resolves to websites that host adult oriented material or attempt to download malware on Internet users’ computers. Use of a disputed domain name to redirect users to site hosting adult-oriented material or to distribute malicious software to users’ computers does not constitute a bona fide offering or a legitimate use per Policy ¶¶ 4(c)(i) or (iii). See Bernstein v. Action Adver., Inc., D2000-0706 (WIPO Sept. 28, 2000) (redirection of the domain name <lipservice.com> to adult website created a legitimate interest); see also 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).”). Complainant provides a screenshot of the disputed domain name’s resolving websites where Respondent uses the disputed domain name to redirect visitors to different sites, including cam4.com and browserstop.com. The page at browserstop.com promotes Respondent’s, or a third-party’s, software, which may be malicious in nature. The webpage at cam4.com offers adult-oriented and pornographic content. The Panel finds that Respondent does not make a bona find offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii), and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant contends that Respondent links users visiting its domain name to a webpage which attempts to download malware on Internet users’ computers. Use of malicious software constitutes bad faith per Policy ¶ 4(a)(iii). See Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA1502001603444 (Forum Mar. 19, 2015)(“Using the disputed domain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The Panel finds that the Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶4(a)(iii).
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <dell-latitude.com> domain name be TRANSFERRED from Respondent to Complainant.
______________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
February 19, 2020
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