Twilio Inc. v. Hulmiho Ukolen
Claim Number: FA2206002001259
Complainant is Twilio Inc. (“Complainant”), represented by Tsan Abrahamson of Cobalt LLP, California, USA. Respondent is Hulmiho Ukolen (“Respondent”), Finland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <twiliod.com>, registered with Gransy, s.r.o..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 21, 2022; the Forum received payment on June 21, 2022.
On June 23, 2022, Gransy, s.r.o. confirmed by e-mail to the Forum that the <twiliod.com> domain name is registered with Gransy, s.r.o. and that Respondent is the current registrant of the name. Gransy, s.r.o. has verified that Respondent is bound by the Gransy, s.r.o. 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 June 23, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 13, 2022 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@twiliod.com. Also on June 23, 2022, 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 July 19, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it was founded in 2008 and is a worldwide leader in cloud communications. It is not an exaggeration to say that Complainant’s services touches directly upon millions of lives. This is because Complainant’s cloud communication platform is the plumbing upon which many modern mobile applications are built upon. Every time a consumer calls for a ride through Uber, orders food from DoorDash, or books a stay with Airbnb, it is highly likely that customer is using Complainant’s services. Complainant is a truly global company whose technology has democratized communications infrastructure by allowing millions of developers around the world to easily create communication channels in the products they build. Complainant is currently headquartered in San Francisco, California, but has 26 offices in 17 countries all over the world. In fiscal year 2020, Complainant’s full year of revenue was $1.8 billion, and the company’s current valuation is at $40.66 billion. Complainant has rights in the TWILIO mark through its registration with multiple trademark agencies, including in the United States in 2011.
Complaint alleges that the disputed domain name is identical or confusingly similar to its TWILIO mark as it contains the mark in its entirety, merely adding the letter “d” and the generic top-level domain (“gTLD”) “.com”.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its TWILIO mark in any way. Respondent does not use the domain name in connection with any bona fide offering of goods or services, nor for a legitimate non-commercial or fair use. Instead, the resolving website is used to attempt to download malicious software on users’ web browsers for commercial gain. Respondent engages in typosquatting.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent has engaged in a pattern of bad faith registrations. Respondent registered the disputed domain name with intent to sell. Moreover, Respondent uses the disputed domain name to download malicious software on users’ web browsers. Additionally, Respondent’s domain name is an example of typosquatting. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the TWILIO mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark TWILIO and uses it to market cloud computing services.
Complainant’s rights in its mark date back to at least 2011.
The disputed domain name was registered in 2014.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website is used to attempt to download malicious software into users’ computers, for commercial gain. Respondent has engaged in a pattern of bad faith registration and use.
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 disputed domain name incorporates Complainant’s TWILIO mark in its entirety, merely adding the letter “d” and the generic top-level domain (“gTLD”) “.com”. A domain name may be identical or confusingly similar to a complainant’s mark, under Policy ¶ 4(a)(i), despite the addition of letters and a gTLD. See Global IT Profiles, LLC v. IT Sales Leads, LLC, FA 1198689 (Forum July 7, 2008) (“[T]he addition of the letter ‘s’ at the end of Complainant’s IPROFILE mark fails to differentiate the mark sufficiently to avoid a finding of confusing similarity.”); see also Expedia, Inc. v. W. Michi, FA 1021106 (Forum Aug. 1, 2007) (finding that the addition of a letter fails to negate confusing similarity between the disputed domain name and the complainant’s mark, and thus <expediwa.com> and <efxpedia.com> are confusingly similar to the EXPEDIA mark). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark pursuant to Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a Respondent is commonly known by a disputed domain name. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM , FA 740335 (Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record). Here, the WHOIS information of record shows that the registrant is “Hulmiho Ukolen”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The resolving website is used to attempt to download malicious software into users’ computers, for commercial gain. Specifically, Complainant presents evidence showing that the resolving website prompts users to download a well known browser hijacker; this is malware that redirects users to pages that generate advertising revenue. Use of a disputed domain name to direct users to a website that installs malicious software on a user’s computer does not constitute a bona fide offering or a legitimate use per 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).”); see also 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).”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services, or a legitimate non-commercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Complainant alleges that the disputed domain name is an example of typosquatting, that is, a typographical error or misspelling introduced into a domain name hoping that Internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark. The Panel does not agree and thus it will not further discuss this allegation.
Complainant also alleges that Respondent offers the disputed domain name for sale. However, it only presents evidence to the effect that the disputed domain name “may be for sale”. The Panel finds that this is not sufficient to support the allegation. Thus the Panel finds that Complainant has failed to satisfy its burden of proof for this element of the Policy, and it will not further discuss this allegation.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, the resolving website is used to attempt to download malicious software on users’ computers for Respondent’s financial gain. This indicates bad faith registration and use according to Policy ¶ 4(a)(iii) and 4(b)(iv). 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)); see also Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding receiving click-through fees for diverting Internet users to unrelated third-party sites was bad faith). Therefore the Panel find that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii) and 4(b)(iv).
Further, Complainant presents evidence showing the Respondent was the respondent in at least forty UDRP cases in which the disputed domain name was transferred to the complainant. Thus Respondent has engaged in a pattern of bad faith registration and use per Policy ¶ 4(b)(ii). See 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).”). Thus the Panel finds that Respondent has engaged in a pattern of bad faith registration and use per Policy ¶ 4(b)(ii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <twiliod.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 19, 2022
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