Wiluna Holdings, LLC v. Milen Radumilo
Claim Number: FA1809001804963
Complainant is Wiluna Holdings, LLC (“Complainant”), represented by John O’Malley of Volpe and Koenig, P.C., Pennsylvania, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <clipa4sale.com>, registered with Interlakenames.com 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 6, 2018; the Forum received payment on September 6, 2018.
On September 9, 2018, Interlakenames.com LLC confirmed by e-mail to the Forum that the <clipa4sale.com> domain name is registered with Interlakenames.com LLC and that Respondent is the current registrant of the name. Interlakenames.com LLC has verified that Respondent is bound by the Interlakenames.com 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 September 10, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 1, 2018 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@clipa4sale.com. Also on September 10, 2018, 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 October 3, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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, Wiluna Holdings, LLC, is the owner of <clips4sale.com> domain name, which features adult-entertainment oriented media. Complainant has rights in the CLIPS4SALE.COM mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,508,680, registered Sep. 30, 2008). Respondent’s <clipa4sale.com> domain name is confusingly similar to Complainant’s CLIPS4SALE.COM mark because it merely substitutes the letter “s” for the letter “a”.
Respondent lacks rights and legitimate interests in the <clipa4sale.com> domain name. Respondent is not authorized to use Complainants CLIPS4SALE.COM mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent attempts to unjustly profit from the goodwill associated with Complainant’s marks by redirecting internet users to various third-party sites.
Respondent registered and uses the <clipa4sale.com> domain name in bad faith. Respondent disrupts Complainant’s business and attempts to attract for commercial gain by redirecting internet users to third-party websites to generate click-through advertising revenue. Furthermore, Respondent engaged in typosquatting when it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Wiluna Holdings, LLC, is the owner of <clips4sale.com> domain name, which features adult-entertainment oriented media. Complainant has rights in the CLIPS4SALE.COM mark based upon its registration of the mark with the USPTO (e.g., Reg. No. 3,508,680, registered Sep. 30, 2008). Respondent’s <clipa4sale.com> domain name is confusingly similar to Complainant’s CLIPS4SALE.COM mark.
Respondent created the <clipa4sale.com> domain name on May 28, 2018.
Respondent lacks rights and legitimate interests in the <clipa4sale.com> domain name. Respondent attempts to unjustly profit from the goodwill associated with Complainant’s mark by redirecting internet users to third-party sites to generate click-through advertising revenue. Furthermore, Respondent engaged in typosquatting when it registered the disputed 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 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 CLIPS4SALE.COM mark under Policy ¶ 4(a)(i) based upon its registration of the mark with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <clipa4sale.com> is confusingly similar to Complainant’s mark because it merely substitutes the letter “s” for the letter “a”.
Respondent lacks rights and legitimate interests in the <clipa4sale.com> domain name because Respondent is not commonly known by the disputed domain name. The WHOIS information of record identifies the Registrant as “Milen Radumilo.” Complainant has not authorized Respondent to use the CLIPS4SALE.COM mark. Where a response is lacking, WHOIS information may be used to identify a respondent 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). Additionally, lack of authorization from a complainant to use its mark may support a finding that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). Therefore, the Panel finds that the Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii).
Respondent fails to use the <clipa4sale.com> domain name in in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Respondent attempts to unjustly profit from the goodwill associated with Complainant’s mark by redirecting internet users to third-party sites to generate click-through advertising revenue. See Bloomberg Finance L.P. v. Syed Hussain / IBN7 Media Group, FA 1721384 (Forum Apr. 26, 2017) (holding that the respondent’s use of the disputed domain name to redirect Internet users to commercial websites, unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name); see also Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Respondent registered and uses the <clipa4sale.com> domain name in bad faith. Specifically, Complainant argues Respondent disrupts Complainant’s business and attempts to redirect internet users to third-party websites to generate click-through advertising revenue. The registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to unrelated third-party websites in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶¶ 4(b)(iii) and/or (iv). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Bloomberg Finance L.P. v. Syed Hussain / IBN7 Media Group, FA 1721384 (Forum Apr. 26, 2017) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to unrelated third-party websites in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Respondent engaged in typosquatting when it registered the <clipa4sale.com> domain name. Registering a disputed domain name by misspelling a complainant’s mark may constitute bad faith under Policy ¶ 4(a)(iii). See Priceline.com, Inc. v. Ryan G Foo / PPA Media Services, FA 135598 (Forum Aug. 18, 2016) (holding that registration of a domain name consisting of a slight misspelling of the complainant’s mark and affiliation of that domain name with the complainant’s affiliate program constituted bad faith per Policy ¶ 4(a)(iii)).
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 <clipa4sale.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 15, 2018
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