Marvell Asia Pte, Ltd. v. Locor Voolist
Claim Number: FA2304002040249
Complainant is Marvell Asia Pte, Ltd. ("Complainant"), represented by Lisa Greenwald-Swire of Fish & Richardson, P.C., Minnesota, USA. Respondent is Locor Voolist ("Respondent"), Wyoming, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <marvell.website>, registered with NameCheap, Inc.
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 April 17, 2023; Forum received payment on April 17, 2023.
On April 17, 2023, NameCheap, Inc. confirmed by email to Forum that the <marvell.website> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 10, 2023 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@marvell.website. Also on April 20, 2023, 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 May 16, 2023, 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 large multinational corporation with total annual revenue approaching $6 billion and more than 5,000 employees located in offices in the United States and other locations around the world. Complainant and its affiliates have used the MARVELL name and trademark for computer hardware and software products since 1995. Complainant states that MARVELL is an invented term. Complainant owns registrations for MARVELL and related marks in the United States and many other jurisdictions.
The disputed domain name <marvell.website> was registered in September 2022. The name is registered in the name of a privacy registration service on behalf of Respondent. It currently resolves to a website that states "To remove yourself from future email" with a prompt for the user to enter an email address. The website appears to include just two other pages, a privacy policy and a disclaimer. Complainant alleges that these pages are merely filler text designed to make the website appear legitimate, noting that they do not include any contact information. (Both pages refer to the website and its owner only as "marvell.website.") Complainant has identified several other websites that are virtually identical but for the substitution of the corresponding domain names. Complainant states that Respondent is not commonly known by the domain name, is not affiliated with Complainant, and is not licensed to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <marvell.website> is identical or confusingly similar to its MARVELL 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 <marvell.website> corresponds to Complainant's registered MARVELL trademark, with the ".website" top-level domain appended thereto. The addition of a top-level domain is normally disregarded for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Google LLC v. Rekcah Uoy Era, FA 1936420 (Forum Apr. 12, 2021) (finding <flutter.website> identical to FLUTTER); Marvell Asia Pte, Ltd. v. Zhao Xing Ming, FA 1930486 (Forum Mar. 2, 2021) (finding <marvell.info> identical to MARVELL); Marvell International Ltd. v. Danut Furdui, FA 1896932 (Forum June 15, 2020) (finding <marvell.group> identical to MARVELL). 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 incorporates Complainant's registered mark without authorization. It is being used for what appears to be a placeholder website with no substantive content, possibly in support of a phishing or other fraudulent scheme. The website has no apparent connection to the domain name, leading the Panel to infer that it may have been selected simply to attract random traffic to the website. In any case, such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Jessica Queller v. Damma Laima / APT, FA 2027196 (Forum Feb. 11, 2023) (finding lack of rights or interests where domain name corresponding to name of U.S.-based author and television producer was used to attract traffic to Indonesian-language gambling website); Nasdaq, Inc. v. Na Me, FA 1996236 (Forum June 13, 2022) (finding lack of rights or interests where domain name incorporating financial services mark was used to attract traffic to sexually explicit commercial website); Baylor University v. 程建玮, FA 1994812 (Forum June 2, 2022) (finding lack of rights or interests where domain name incorporating university's name and mark was used to attract traffic to sexually explicit commercial website); Kellogg North America Co. v. James Hoggins / Freight, FA 1863624 (Forum Oct. 19, 2019) (finding lack of rights or interests where domain name corresponding to misspelling of famous mark for food products was used for placeholder website lacking substantive content).
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 used a privacy registration service to register a domain name corresponding to Complainant's well-known registered mark. The domain name is being used for what appears to be an unrelated placeholder website with no substantive content, possibly in support of a phishing or other fraudulent scheme. Respondent does not appear to have made any other use of the domain name, and has not come forward with any explanation for the registration of the disputed domain name nor elected to participate in this proceeding. The Panel notes that some of the virtually identical websites identified by Respondent also use domain names that correspond to unrelated trademarks, suggesting that Respondent may be engaging in a pattern of similar behavior. Under the circumstances, the Panel considers it reasonable to infer that Respondent selected the disputed domain name because of its correspondence to Complainant's mark and is using the domain name to disrupt Complainant's business or create confusion with Complainant's mark for commercial gain. See, e.g., Jessica Queller v. Damma Laima / APT, supra (finding bad faith registration and use in similar circumstances); Nasdaq, Inc. v. Na Me, supra (same); Marvell International Ltd. v. Danut Furdui, supra (same); Kellogg North America Co. v. James Hoggins / Freight, supra (same). 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 <marvell.website> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 16, 2023
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