Zodiac Pool Systems LLC v. Milen Radumilo
Claim Number: FA2209002010792
Complainant is Zodiac Pool Systems LLC ("Complainant"), United States, represented by Sarah E. Bro of McDermott Will & Emery LLP, United States. Respondent is Milen Radumilo ("Respondent"), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <jandy.org>, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on September 2, 2022; Forum received payment on September 2, 2022.
On September 3, 2022, CommuniGal Communication Ltd. confirmed by email to Forum that the <jandy.org> domain name is registered with CommuniGal Communication Ltd. and that Respondent is the current registrant of the name. 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 ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On September 9, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 29, 2022 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@jandy.org. Also on September 9, 2022, 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, Forum transmitted to the parties a Notification of Respondent Default.
On October 10, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 is a global manufacturer of residential and commercial pool equipment and connected pool solutions. Complainant markets its products under various brand names including JANDY. Complainant and its predecessors in interest have used the JANDY mark in connection with automated pool cleaners and other products since 1961. Complainant owns various United States trademark registrations for JANDY in standard character form, along with similar registrations in the European Union and other jurisdictions.
Respondent is the registrant of the disputed domain name <jandy.org>, which was registered in July 2022. Since that time, the domain name has been used variously to display a parked page consisting of advertising links; to redirect to third-party commercial websites; and to display a message prompting the user to download a browser extension. Complainant states that Respondent is not commonly known by the domain name, is not affiliated with Complainant, and is not licensed or permitted to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <jandy.org> is identical and confusingly similar to its JANDY 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 identical 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 and 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 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 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 <jandy.org> corresponds to Complainant's registered JANDY trademark, with the ".org" top-level domain appended thereto. The addition of a top-level domain such as ".org" is normally disregarded for purposes of assessing similarity or identicality under Paragraph 4(a)(1) of the Policy. See, e.g., Colibri SAS v. Milen Radumilo, D2022-1027 (WIPO May 14, 2022) (finding <manomano.org> identical to MANOMANO); ServiceTitan, Inc. v. John Kim, FA 1990406 (Forum Apr. 26, 2022) (finding <servicetitan.org> identical to SERVICETITAN). The Panel considers the disputed domain name to be identical 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 corresponds to Complainant's registered mark without authorization. It has been used to display a parked page consisting of advertising links; to redirect to third-party commercial websites; and to display a message prompting the user to download a browser extension. Such uses do not give rise to rights or legitimate interests under the Policy. See, e.g., Mary Washington Healthcare v. Domain Administrator / Fundacion Privacy Services LTD, FA 1976877 (Forum Jan. 13, 2022) (finding lack of rights or interests in similar circumstances); Dell Inc. v. Milen Radumilo, FA 1945460 (Forum June 14, 2021) (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)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), 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 corresponding to Complainant's registered mark and is using it to display a parked page consisting of advertising links; to redirect to third-party commercial websites; and to display a message prompting the user to download a browser extension. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Mary Washington Healthcare v. Domain Administrator / Fundacion Privacy Services LTD, supra (finding bad faith in similar circumstances). The Panel also notes that Respondent has been found to have engaged in similar bad faith conduct involving other domain names. See, e.g., Colibri SAS v. Milen Radumilo, supra (referring to Respondent's "recidivist behavior" involving bad faith domain name registrations); Dell Inc. v. Milen Radumilo, supra. The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <jandy.org> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 11, 2022
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