Twitter, Inc. v. Milen Radumilo
Claim Number: FA2104001941464
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 name at issue are <buy-twitter-followers.us> and <twittermap.us>, registered with 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 14, 2021; the Forum received payment on April 14, 2021.
On April 19, 2021, CommuniGal Communication Ltd. confirmed by e-mail to the Forum that the <buy-twitter-followers.us> and <twittermap.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 April 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 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@buy-twitter-followers.us, postmaster@twittermap.us. Also on April 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 May 19, 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 usTLD 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 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
1. Respondent’s <buy-twitter-followers.us> and <twittermap.us> domain names are confusingly similar to Complainant’s TWITTER mark.
2. Respondent does not have any rights or legitimate interests in the <buy-twitter-followers.us> and <twittermap.us> domain names.
3. Respondent registered and uses the <buy-twitter-followers.us> and <twittermap.us> domain names in bad faith.
B. Respondent did not file a Response.
Complainant operates the TWITTER platform and holds a registration for the TWITTER mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,619,911 registered May 12, 2009).
Respondent registered the <buy-twitter-followers.us> domain name on February 9, 2021, and the <twittermap.us> domain name on March 6, 2020, and uses them to compete with Complainant and to download 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 Panel finds that Complainant has rights in the TWITTER mark based upon the registration 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 <buy-twitter-followers.us> and <twittermap.us> domain names use Complainant’s TWITTER mark and add generic terms and and the “.us” ccTLD. The addition of a generic term and a ccTLD fails to sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Am. Express Co. v. McWIlliam, FA 268423 (Forum July 6, 2004) (holding that the ccTLD “.us” does not negate confusing similarity under Policy ¶ 4(a)(i)). See also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Therefore, the Panel finds that Respondent’s <buy-twitter-followers.us> and <twittermap.us> 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 name 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 name 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 <buy-twitter-followers.us> and <twittermap.us> domain names since Respondent is not commonly known by the disputed domain names and Complainant has not authorized or licensed to Respondent any rights in the TWITTER mark. The WHOIS information for the disputed domain name lists the registrant as “Milen Radumilo.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(iii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name); see also Emerson Electric Co. v. Cai Jian Lin / Shen Zhen Shi colorsun Zi Dong Hua You Xian Gong Si, FA 1798802 (Forum Aug. 31, 2018) (“UDRP panels have consistently held that evidence of a registrant name that is materially different from the domain name at issue is competent evidence that the respondent is not commonly known by the domain name.”).
Complainant argues that Respondent fails to use the disputed domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use, as the disputed domain names resolve to a page displaying links related to the goods and services associated with Complainant and its competitors. Using a disputed domain name to redirect users to competing services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(ii) or (iv). See Compania Mexicana de Aviacion, S.A. de C.V. v. Bigfoot Ventures LLC, FA 1195961 (Forum July 14, 2008) (holding that the respondent had not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use when “the website resolving from the disputed domain name displays links to travel products and services, which directly compete with Complainant’s business”)). Complainant provides screenshots of the resolving pages showing links to its competitors. The Panel finds that Respondent 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)(ii) or (iv).
Complainant demonstrates that Respondent also uses the disputed domain names to download malicious software. The Panel finds that this use is also not a bona fide offering of goods or services or a legitimate noncommercial or fair use, further showing a lack of rights under Policy ¶ 4(c)(ii) and (iv). See Hilton Hotels Corp. v. Padonack, FA 1043687 (Forum Sept. 6, 2007) (holding that the use of a disputed domain name to host a website that attempted to download a virus when accessed did not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name).
Complainant contends that Respondent’s general offer to sell the disputed domain names is additional evidence of a lack of rights or legitimate interests under Policy ¶ 4(a)(ii). The Panel agrees, noting Complainant’s evidence, and finds that Respondent lacks rights under Policy ¶ 4(a)(ii). See 3M Company v. Kabir S Rawat, FA 1725052 (Forum May 9, 2017) (holding that “a general offer for sale… provides additional evidence that Respondent lacks rights and legitimate interests” in a disputed domain name).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent registered and uses the <buy-twitter-followers.us> and <twittermap.us> domain names in bad faith due to a pattern of bad faith, and provides evidence of Respondent’s history of adverse UDRP proceedings. The Panel finds that this demonstrates bad faith under Policy ¶ 4(b)(ii). See Tommy John, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA2001001878688 (Forum Feb. 6, 2020) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) where the respondent had been subject to numerous UDRP proceedings where panels ordered the transfer of disputed domain names containing the trademarks of the complainants).
Complainant argues that Respondent registered and uses the <buy-twitter-followers.us> and <twittermap.us> domain names in bad faith because Respondent disrupts Complainant’s business and attempts to attract Internet users to its competing website for commercial gain. Using a disputed domain name to redirect consumers to competing goods or services can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) (“Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another.”); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA1504001615034 (Forum June 4, 2015) (holding that the respondent’s use of the <capitaloneonebank.com> domain name to display links to the complainant’s competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)). Accordingly, the Panel finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(b)(iii) or (iv).
Complainant argues that Respondent’s use of the <buy-twitter-followers.us> and <twittermap.us> domain names to download malicious software is further evidence of bad faith. The Panel agrees and finds under Policy ¶ 4(a)(iii). See Asbury Communities, Inc. v. Tiffany Hedges, FA 1785054 (Forum June 18, 2018) (“The Panel here finds that Respondent [installation of malware] further support the conclusion that Respondent registered and used the <asburymethodistvillage.com> domain name in bad faith under Policy ¶ 4(a)(iii)”).
Complainant also argues that Respondent had knowledge of Complainant’s rights in the TWITTER mark at the time of registering the <buy-twitter-followers.us> and <twittermap.us> domain names. Due to the fame of the TWITTER mark, the Panel agrees and finds further 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 iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <buy-twitter-followers.us> and <twittermap.us> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 20, 2021
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