Dell Inc. v. Milen Radumilo
Claim Number: FA1910001866172
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell-emc.us>, registered with GoDaddy.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 October 10, 2019; the Forum received payment on October 10, 2019.
On October 11, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dell-emc.us> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 October 11, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 31, 2019 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-emc.us. Also on October 11, 2019, 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 November 1, 2019, 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 usTLD Dispute Resolution Policy ("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 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 acquired the EMC Corporation in 2016, incorporating it as a wholly owned subsidiary that is a leader in computers, computer accessories, data storage, information security, and other related products and services. Complainant has rights in the DELL EMC mark through its trademark registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 5,551,479, registered Aug. 28, 2018). Respondent’s <dell-emc.us> domain name is identical and confusingly similar to Complainant’s DELL EMC mark as it incorporates the mark in its entirety, merely placing a hyphen in the middle of the DELL and EMC marks and a “.us” country code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <dell-emc.us> domain name. Respondent is not authorized to use Complainant’s DELL EMC mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent’s disputed domain name resolves to a website at the <mysecurify.com> domain name with pay-per-click links and attempts to distribute harmful software.
Respondent registered or uses the <dell-emc.us> domain name in bad faith. Respondent has engaged in a pattern of bad faith registration as it has registered other domain names incorporate third-party marks. Furthermore, Respondent attempts to attract, for commercial gain, users to the disputed domain name where it features pay-per-click links. Respondent also attempts to distribute malware through the domain name. Finally, Respondent knew of Complainant’s rights in the DELL, EMC, and DELL EMC marks prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant acquired the EMC Corporation in 2016, incorporating it as a wholly owned subsidiary that is a leader in computers, computer accessories, data storage, information security, and other related products and services. Complainant has rights in the DELL EMC mark through its trademark registration with the USPTO (e.g., Reg. No. 5,551,479, registered Aug. 28, 2018). Respondent’s <dell-emc.us> domain name is identical and confusingly similar to Complainant’s DELL EMC.
Respondent registered the <dell-emc.us> domain name on July 10, 2019.
Respondent has no rights or legitimate interests in the <dell-emc.us> domain name. Respondent’s disputed domain name resolves to a website at the <mysecurify.com> domain name with pay-per-click links and attempts to distribute harmful software.
Respondent registered and uses the <dell-emc.us> 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.
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”).
Complainant has rights in the DELL EMC mark under Policy ¶ 4(a)(i) based upon registration of the mark with the USPTO. 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).
Respondent’s <dell-emc.us> domain name is confusingly similar to the DELL EMC mark, as the name incorporates the mark in its entirety, merely placing a hyphen in the middle of the DELL and EMC marks and a “.us” ccTLD.
Respondent has no rights or legitimate interests in the <dell-emc.us> domain name. Complainant has not authorized Respondent to use the DELL EMC mark. The WHOIS information of record identifies the registrant of the domain name as “Milen Radumilo.” Respondent is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017).
Respondent has failed to use the <dell-emc.us> domain name to make a bona fide offering of goods or services or for a legitimate noncommercial or fair use. The domain name resolves to a website which is being used to obtain click-through revenue by linking to third-party websites, some of which compete with Complainant’s business. Furthermore, often when the domain name is typed into a browser, a parking page is loaded that features links with titles related to Complainant’s products such as “Powervault” and “Vmware”—both registered trademarks owned by Complainant or its majority-owned and controlled subsidiary, VMWare, Inc. Use of a domain name to link to a complainant’s competitors does not show rights or legitimate interests per Policy ¶¶ 4(c)(ii) or (iv). See Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business).
Complainant further argues Respondent’s lack of rights or legitimate interests in the <dell-emc.us> domain name is shown by its purported attempts to distribute harmful software through the domain name. Complainant contends that users attempting to visit the disputed domain name are redirected to a website at the <mysecurify.com> domain name, which prompts users to click on a “security check,” after which they are redirected a Chrome store that attempts to install software. Use of a disputed domain name to distribute malware is not a bona fide offering of goods or services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) or (iv). See Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Forum June 23, 2009) (finding that a respondent’s use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses “failed to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”). Although Complainant’s evidence falls short of showing that Respondent attempts to install malware, Complainant’s showing is sufficient to show that Respondent is not making a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
Therefore, Respondent lacks rights or legitimate interests per Policy ¶¶ 4(c)(ii) or (iv).
Complainant contends Respondent’s registration of the <dell-emc.us> domain name is part of a pattern of bad faith registration and use of domain names. A pattern of bad faith registration can be established by a showing of the respondent’s registration of other domain names infringing on famous marks, and such a pattern can indicate bad faith under Policy ¶ 4(b)(ii). See N.H. Sweepstakes Comm’n v. We Web Well, Inc., FA 197499 (Forum Nov. 3, 2003) (finding that the complainant’s submission of WHOIS evidence that listed the respondent as the registrant of other domain names incorporating third-party trademarks was sufficient to establish that the respondent had a pattern of registering and using domain names in bad faith pursuant to Policy ¶ 4(b)(ii)). Complainant includes printouts of WHOIS information for other domain names (all containing a third-party mark) where Respondent, Milen Radumilo, is listed as the registrant. (e.g., <apple-iphone.us>). Therefore, Respondent’s registration and use of the <dell-emc.us> domain name is part of a pattern and is bad faith under Policy ¶ 4(b)(ii).
Respondent’s bad faith under Policy ¶ 4(b)(iv) is shown by its use of the <dell-emc.us> domain name to link to third party websites, including competitive links. See Staples, Inc. and Staples the Office Superstores, LLC v. HANNA EL HIN / DTAPLES.COM, FA1404001557007 (Forum June 6, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <dtaples.com> domain name in bad faith under Policy ¶ 4(b)(iv) because the Respondent is using the disputed domain name to host third-party links to Complainant’s competitors from which Respondent is presumed to obtain some commercial benefit.”).
Respondent’s bad faith under Policy ¶ 4(a)(iii) is shown by its use of the <dell-emc.us> domain name to redirect users to a website at the <mysecurify.com> domain name, which prompts users to click on a “security check,” after which they are redirected a Chrome store that attempts to install software.
Respondent registered the <dell-emc.us> domain name with actual knowledge of Complainant's rights in the DELL EMC mark. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014).
Complainant having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dell-emc.us> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 15, 2019
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