Twitter, Inc. v. Milen Radumilo
Claim Number: FA2104001940684
Complainant is Twitter, Inc. (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <twitter.asia> and <pict-twitter.com>, registered with Dynadot, Llc.; Communigal Communication Ltd..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 8, 2021; the Forum received payment on April 8, 2021.
On April 12, 2021; April 18, 2021, Dynadot, Llc.; CommuniGal Communication Ltd. confirmed by e-mail to the Forum that the <twitter.asia> and <pict-twitter.com> domain names are registered with Dynadot, Llc.; Communigal Communication Ltd. and that Respondent is the current registrant of the names. Dynadot, Llc.; CommuniGal Communication Ltd. has verified that Respondent is bound by the Dynadot, Llc.; CommuniGal Communication Ltd. 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 April 20, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 10, 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@twitter.asia, postmaster@pict-twitter.com. Also on April 20, 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 May 12, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 names be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <twitter.asia> and <pict-twitter.com> domain names are confusingly similar to Complainant’s TWITTER mark.
2. Respondent does not have any rights or legitimate interests in the <twitter.asia> and <pict-twitter.com> domain names.
3. Respondent registered and uses the <twitter.asia> and <pict-twitter.com> domain names in bad faith.
B. Respondent did not file a Response.
Complainant, Twitter, Inc., operates a well-known social media platform. Complainant holds a registration for the TWITTER mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,619,911, Registration May 12, 2009).
Respondent registered the <twitter.asia> domain name on August 6, 2015, and the <pict-twitter.com> domain name on February 23, 2021, and uses them to distribute malware and offer the domains for sale.
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”).
The Panel finds that Complainant has rights in the TWITTER mark through registration of the mark with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <twitter.asia> and <pict-twitter.com> domain names incorporate the TWITTER mark with a gTLD, and the latter simply adds “pict” and a hyphen. These additions fail to sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”). See also Am. Online Inc. v. Neticq.com Ltd., D2000-1606 (WIPO Feb. 12, 2001) (finding that the addition of the generic word “Net” to the complainant’s ICQ mark, makes the <neticq.com> domain name confusingly similar to the complainant’s mark); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds that Respondent’s <twitter.asia> and <pict-twitter.com> domain names are confusingly similar to Complainant’s TWITTER mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), 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 names and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant contends that Respondent lacks rights and legitimate interests in the <twitter.asia> and <pict-twitter.com> domain names, as Respondent is not commonly known by the domain names. Complainant has not authorized Respondent to use the TWITTER mark. The WHOIS information lists the registrant of the disputed domain names as “Milen Radumilo.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names, and thus has no rights under Policy ¶ 4(c)(ii). See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain names where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.); see also 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).
Complainant argues that Respondent fails to use the <twitter.asia> and <pict-twitter.com> domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use, as Respondent uses the domain names to distribute malware. Distributing malware is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See 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 demonstrates that the <twitter.asia> and <pict-twitter.com> domain names redirect Internet users to fake security warnings that prompt the users to install software that may be malicious. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or (iii).
Complainant also contends that Respondent lacks rights and legitimate interests in the <twitter.asia> and <pict-twitter.com> domain names, as Respondent is offering the domain names for sale. The Panel agrees, noting that the disputed domain names both display offers for sale. See Williams-Sonoma, Inc. v. Fees, FA 937704 (Forum Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <twitter.asia> and <pict-twitter.com> domain names in bad faith since Respondent offers them for sale. A Respondent offering confusingly similar domain names for sale may be indicative of bad faith per Policy ¶ 4(b)(i). See Gen. Elec. Co. v. FORDDIRECT.COM, INC., D2000-0394 (WIPO June 22, 2000) (finding that the respondent registered and used the domain name in bad faith by using the domain name to direct users to a general site offering the domain name for sale). Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(i).
Complainant contends that Respondent registered and uses the <twitter.asia> and <pict-twitter.com> domain names in bad faith, as Respondent has a pattern of bad faith registration. Complainant shows that Respondent has been party to over 50 previous adverse UDRP decisions and holds two confusingly similar domain names in this case. Therefore, the Panel finds a pattern of bad faith, demonstrating bad faith under Policy ¶ 4(b)(ii). See YAHOO! INC v. Syrynx, Inc., D2000-1675 (WIPO Jan. 30, 2001) (finding a bad faith pattern pursuant to Policy ¶ 4(b)(ii) in the respondent's registration of two domain names incorporating the complainant's YAHOO! mark). See also DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”).
Complainant also argues that Respondent registered and uses the <twitter.asia> and <pict-twitter.com> domain names in bad faith to divert Internet traffic for commercial gain. Using a confusingly similar domain name to divert Internet traffic for commercial gain may be bad faith Under Policy ¶ 4(b)(iv). See Phat Fashions, LLC v. Kruger, FA 96193 (Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though the respondent has not used the domain name because “it makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”). Complainant contends that, by using the <twitter.asia> and <pict-twitter.com> domain names to distribute malware, Respondent presumably gains financially. The Panel agrees and finds bad faith under Policy ¶ 4(b)(iv).
Complainant also contends that Respondent registered and uses the <twitter.asia> and <pict-twitter.com> domain names in bad faith, as Respondent registered the disputed domain names with actual knowledge of Complainant’s business and rights in the TWITTER mark. The Panel agrees, noting the fame of the TWITTER mark, and finds bad faith under Policy ¶ 4(a)(iii). See AutoZone Parts, Inc. v. Ken Belden, FA 1815011 (Forum Dec. 24, 2018) (“Complainant contends that Respondent’s knowledge can be presumed in light of the substantial fame and notoriety of the AUTOZONE mark, as well as the fact that Complainant is the largest retailer in the field. The Panel here finds that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith registration and use under Policy ¶ 4(a)(iii).”); see also eBay, Inc v. Progressive Life Awareness Network, D2001-0068 (WIPO Mar. 16, 2001) (finding bad faith pursuant to Policy ¶ 4(b)(iv) where the respondent capitalized on the fame associated with the complainant’s EBAY mark and profited from it by diverting users seeking the complainant to the respondent’s website).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <twitter.asia> and <pict-twitter.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 13, 2021
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