Radio Flyer, Inc. v. Milen Radumilo
Claim Number: FA2003001890013
Complainant is Radio Flyer Inc. ("Complainant"), represented by Joshua S. Frick of Barnes & Thornburg LLP, Illinois, United States. Respondent is Milen Radumilo ("Respondent"), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <radiofly.us>, registered with Dynadot, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 26, 2020; the Forum received payment on March 26, 2020.
On March 29, 2020, Dynadot, LLC confirmed by email to the Forum that the <radiofly.us> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 April 3, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 23, 2020 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@radiofly.us. Also on April 3, 2020, the Written Notice of the Complaint, notifying Respondent of the email 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 April 29, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 has used RADIO FLYER and related marks since at least as early as 1931 in connection with the manufacture and sale of wagons and other toys. The marks are the subject of numerous longstanding U.S. trademark registrations (as well as numerous foreign registrations), and Complainant asserts that RADIO FLYER has become famous as a result of widespread use and promotion.
Respondent registered the disputed domain name <radiofly.us> in January 2020. The domain name is being used to redirect Internet users to a website that attempts to install malware on the user's computer. Complainant states that Respondent is not commonly known by the domain name, is not associated with Complainant, and has not been licensed or otherwise authorized to use Complainant's RADIO FLYER mark.
Complainant contends on the above grounds that the disputed domain name <radiofly.us> is confusingly similar to its RADIO FLYER mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered or is being used 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 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 principles 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <radiofly.us> incorporates Complainant's registered RADIO FLYER trademark, omitting the space and the letters "er" at the end and adding the ".us" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Radio Flyer Inc. v. Ionut-Ciprian Aghiorghiesei, FA 1880293 (Forum Feb. 21, 2020) (finding <radiofly.biz> confusingly similar to RADIO FLYER); Radio Flyer, Inc. v. Kiki Krisanti, FA 1835115 (Forum Apr. 29, 2019) (finding <radiofly.info> confusingly similar to RADIO FLYER); Entertainment Network (India) Ltd. v. Ash Kapadia, FA 1364939 (Forum Feb. 4, 2011) (finding <radiomirchi.us> identical to RADIO MIRCHI). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for the sole apparent purpose of disseminating malware. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Google LLC v. Host Master / Transure Enterprise Ltd, FA 1877994 (Forum Feb. 8, 2020) (finding lack of rights or interests in similar circumstances); Bittrex, Inc. v. Milen Radumilo, FA 1836988 (Forum May 6, 2019) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating nearly all of Complainant's famous registered mark, and is using the domain name for the sole apparent purpose of disseminating malware, presumably for Respondent's commercial gain. Such conduct is indicative of both registration and use in bad faith. See, e.g., Google LLC v. Host Master / Transure Enterprise Ltd, supra (finding bad faith registration and use in in similar circumstances); Bittrex, Inc. v. Milen Radumilo, supra (same). The Panel finds that the disputed domain name was registered or is being used in bad faith.
Having considered the three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <radiofly.us> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 29, 2020
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