Dell Inc. v. Milen Radumilo
Claim Number: FA2103001937667
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Virginia, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dellstore.us>, <dell-server.us>, <dell-inspiron.us>, <dell-coupons.us>, <dell-coupon.us>, <dell-contact.us>, <dell-laptops.us>, <dell-computers.us>, <dell-computer.us>, <dell-support-number.us>, and <dell-vostro.us> registered with CommuniGal Communication Ltd..
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 23, 2021; the Forum received payment on March 23, 2021.
On March 24, 2021, CommuniGal Communication Ltd. confirmed by e-mail to the Forum that the <dellstore.us>, <dell-server.us>, <dell-inspiron.us>, <dell-coupons.us>, <dell-coupon.us>, <dell-contact.us>, <dell-laptops.us>, <dell-computers.us>, <dell-computer.us>, <dell-support-number.us>, and <dell-vostro.us> domain names are registered with CommuniGal Communication Ltd. and that Respondent is the current registrant of the names. CommuniGal Communication Ltd. has verified that Respondent is bound by the CommuniGal Communication Ltd. 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 March 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 15, 2021 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@dellstore.us, postmaster@dell-server.us, postmaster@dell-inspiron.us, postmaster@dell-coupons.us, postmaster@dell-coupon.us, postmaster@dell-contact.us, postmaster@dell-laptops.us, postmaster@dell-computers.us, postmaster@dell-computer.us, postmaster@dell-support-number.us, postmaster@dell-vostro.us. Also on March 26, 2021, 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 April 20, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant, Dell Inc., is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has rights in the DELL mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Complainant also has rights in the INSPIRON and VOSTRO marks based upon USPTO registration (e.g., Reg. No. 2,254,835, registered June 22, 1999; Reg. No. 3,399,117, registered Mar. 18, 2008). The <dellstore.us>, <dell-server.us>, <dell-inspiron.us>, <dell-coupons.us>, <dell-coupon.us>, <dell-contact.us>, <dell-laptops.us>, <dell-computers.us>, <dell-computer.us>, <dell-support-number.us>, and <dell-vostro.us> domain names are confusingly similar to the DELL mark as they each incorporate the mark in its entirety alongside the INSPIRON or VOSTRO mark, a generic term, and/or the “.us” country code top level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the at-issue domain names. Respondent is not commonly known by any of the domain names and is not licensed or permitted to use the DELL mark. Additionally, Respondent is not making a bona fide offering of goods or services via the at-issue domain name, nor a legitimate noncommercial or fair use because the domain names redirect internet traffic to sites used in the spread of malicious software.
Respondent registered or uses the disputed domain names in bad faith because Respondent displays a pattern of bad faith registration. Additionally, Respondent attempts to use the domain name in connection with the dissemination of malware. Finally, Respondent registered the disputed domain names with knowledge of Complainant’s rights in the marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in DELL.
Respondent is not affiliated with Complainant and is not authorized to use the DELL mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in DELL.
Respondent’s domain names redirect internet traffic to websites used in the spread of malicious software.
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 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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the DELL mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s at-issue domain names all contain Complainant’s DELL trademark with various inclusions of hyphens, suggestive terms, or other Complainant trademarks, all followed by the paragraph 4 (a)(i) irrelevant generic top-level domain name, “.us.” The differences between Complainant’s trademark and each domain name materially does nothing to distinguish any at-issue domain name from Complainant’s DELL trademark. Therefore, the Panel concludes that Respondent’s <dellstore.us>, <dell-server.us>, <dell-inspiron.us>, <dell-coupons.us>, <dell-coupon.us>, <dell-contact.us>, <dell-laptops.us>, <dell-computers.us>, <dell-computer.us>, <dell-support-number.us>, and <dell-vostro.us> domain names are each confusingly similar to Complainant’s DELL trademark pursuant to Policy ¶ 4(a)(i). See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”). Additionally, combination of multiple marks does not diminish confusing similarity. See Hewlett-Packard Development Company, L.P. v. Yangxiaoyi / Qingyuan Tianheng Trading Company Ltd., FA 1625637 (Forum June 23, 2015) (“The combination of a complainant’s mark does not allow a respondent to avoid a finding of confusing similarity under Policy ¶ 4(a)(i).”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as ““Milen Radumilo” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by any of the at-issue domain name. The Panel therefore concludes that Respondent is not commonly known by any of the domain names for the purposes of Policy ¶ 4(c)(iii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Additionally, Respondent uses the confusingly similar <dellstore.us>, <dell-server.us>, <dell-inspiron.us>, <dell-coupons.us>, <dell-coupon.us>, <dell-contact.us>, <dell-laptops.us>, <dell-computers.us>, <dell-computer.us>, <dell-support-number.us>, and <dell-vostro.us> domain names to address websites that hosts facilities for distributing malware. Respondent’s use of the domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(ii), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iv). See Coachella Music Festival, LLC v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1785199 (Forum June 5, 2018) (“Respondent uses the <coechella.com> domain name to direct internet users to a website which is used to attempt to install malware on visiting devices. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain names were each registered and used in bad faith. As discussed below without limitation, there is evidence from which the Panel concludes that Respondent acted in bad faith regarding each domain name pursuant to Policy ¶ 4(a)(iii).
First, Respondent uses the confusingly similar domain names facilitate the distribution of malware. Websites addressed by the at-issue domain names encourage internet users to click buttons for security checks, browser updates, or extension downloads which, in fact, vector malware. Using the domain names to distribute malware demonstrates Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Microsoft Corporation v. ABK / George Owens a/k/a Rohan / Rohan Suha, FA1211001473573 (Forum Jan. 21, 2013) (holding that because the respondent used the disputed domain name to attempt to facilitate the download of malicious software to the computers of the website’s visitors, the respondent had registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii)).
Next, Respondent’s registration and use of multiple domain names that are confusingly similar to Complainant’s DELL mark discloses Respondent’s pattern of bad faith domain name registration and use. Respondent’s pattern of cybersquatting demonstrates bad faith per Policy ¶ 4(b)(ii). See Ditec International AB / Global Preservation Systems, LLC v. ADAM FARRAR / HOSTGATOR / FRITS VERGOOSSEN / DITEC INTERNATIONAL CORPORATION / Christopher Alison, FA 1763998 (Forum Feb. 1, 2018) (“Here, Respondent registered six domain names that all include Complainant’s DITEC mark. Therefore, the Panel finds that Respondent’s multiple registrations using the DITEC mark indicates bad faith registration and use per Policy ¶ 4(b)(ii).”).
Finally, Respondent had actual knowledge of Complainant’s rights in the DELL mark when it registered and used each of the at-issue domain names. Respondent’s actual knowledge is evident from the notoriety of Complainant’s DELL trademark and from Respondent’s multiple domain name registrations containing the DELL trademark and related terms. Respondent’s registration and use of the confusingly similar domain names with knowledge of Complainant’s trademark rights in such domain names further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellstore.us>, <dell-server.us>, <dell-inspiron.us>, <dell-coupons.us>, <dell-coupon.us>, <dell-contact.us>, <dell-laptops.us>, <dell-computers.us>, <dell-computer.us>, <dell-support-number.us>, and <dell-vostro.us> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 22, 2021
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