Adobe Inc. v. Milen Radumilo
Claim Number: FA2306002048754
Complainant is Adobe Inc. (“Complainant”), represented by Griffin Barnett of Perkins Coie LLP, District of Columbia, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <adobe-update.info>, <adobe-reader.info>, <adobe-photoshop.info>, <adobe-muse.info> and <adobe-dreamweaver.info>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on June 13, 2023; Forum received payment on June 13, 2023.
On June 16, 2023, CommuniGal Communication Ltd. confirmed by e-mail to Forum that the <adobe-update.info>, <adobe-reader.info>, <adobe-photoshop.info>, <adobe-muse.info> and <adobe-dreamweaver.info> 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 16, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 2023 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@adobe-update.info, postmaster@adobe-reader.info, postmaster@adobe-photoshop.info, postmaster@adobe-muse.info, postmaster@adobe-dreamweaver.info. Also on June 16, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On July 12, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it offers various computer software products and services. Complainant has rights in the ADOBE, PHOTOSHOP, and DREAMWEAVER marks through their registration in the United States in, respectively, 1988, 1994, and 1999. The marks are registered elsewhere around the world and they are well known.
Complainant alleges that the disputed domain names are identical or confusingly similar to its ADOBE, and/or PHOTOSHOP and DREAMWEAVER marks as they incorporate the marks in their entirety and merely add generic/descriptive terms, hyphens, and the “.info” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use its marks in any way. Respondent does not use the disputed domain names for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the resolving websites display advertising hyperlinks, some of which are for products and services that compete with those of Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. The resolving websites display advertising hyperlinks, some of which are for products and services that compete with those of Complainant. Respondent engages in a pattern of bad faith registration and use by registering multiple infringing domain names and by having been found to have registered and used domain names in bad faith in numerous prior UDRP proceedings. Respondent creates initial interest confusion. Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in its marks. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the marks ADOBE, PHOTOSHOP, and DREAMSCAPE with rights dating back to, respectively, 1988, 1994, and 1999. The marks are used to market a variety of computer software products and services.
The disputed domain names were registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving websites display pay-per-click hyperlinks, some of which are for products and services that compete with those of Complainant. Respondent has engaged in a pattern of bad faith registration and use of domain names.
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 names incorporate Complainant’s ADOBE, and/or PHOTOSHOP and DREAMSCAPE marks in their entirety and merely add generic/descriptive terms, hyphens, and the “.info” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), adding a gTLD and/or hyphens and/or generic/descriptive terms is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”); see also Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”); see also G.D. Searle v. Martin Mktg., FA 118277 (Forum Oct. 1, 2002) (“Complainant has the right to protect its trademark whether standing alone, or included in a string of industry-related marks. Respondent’s inclusion of other drug-related marks [in the <viagra-xenical-celebrex-propecia-meridia-zyban.com> domain name] only increases the likelihood that confusion will result from use of the domain name.”). Therefore the Panel finds that the disputed domain names are confusingly similar to Complainant’s marks under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its marks in any way. Respondent is not commonly known by the disputed domain names: under Policy ¶ 4(c)(ii), relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record identifies the registrant as “Milen Radumilo”. Thus the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
The evidence provided by Complainant shows that Respondent uses the disputed domain names to display a parked webpage containing links to third-party sites, some of which offer products or services that compete with those of Complainant. Use of a domain name to redirect users to unrelated third-party sites (whether or not they compete with Complainant) is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA1507001629217 (Forum August 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant). Therefore, the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s marks. 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 names.
Indeed, as already noted, Respondent uses the disputed domain names to disrupt Complainant’s business and attract users for commercial gain through the use of third-party links. Panels have found such a use of a domain name to constitute bad faith under Policy ¶ 4(b)(iv) and/or (iii). See Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum February 20, 2015) (“This Panel agrees that Respondent’s use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”). Bad faith has been found even where a respondent has commercially benefited through links unrelated to a complainant’s mark. See Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015) (holding that the respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained). Thus, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and/or (iv).
Further, Respondent displays a pattern of bad faith registration of disputed domain names containing Complainant’s marks, and Complainant presents evidence showing that Respondent has been found to have registered and used disputed domain names in bad faith in numerous prior UDRP proceedings. Registration of multiple domain names containing a complainant’s mark can substantiate an argument that a respondent registered and uses a disputed domain name in bad faith per Policy ¶ 4(b)(ii), as can having been found to have registered and used domain names in bad faith in prior UDRP proceedings. See NIKE, Inc., and Nike Innovate, C.V. v. Emile Boulanger, FA 1732458 (Forum July 3, 2017) (finding that registration of several infringing domain names in a case satisfies the burden imposed by the Policy ¶ 4(b)(ii)); see also Caterpillar Inc. v. Angie Arendt / DIAHOST .CO / keith mosley, FA1805001789701 (Nat. Arb. Forum July 2, 2018) (finding that Respondent engaged in a pattern of bad faith and registration by registering multiple domain names that contain Complainant’s famous CATERPILLAR 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).”). Thus the Panel finds that Respondent registered and uses the disputed domain names in bad faith 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 <adobe-update.info>, <adobe-reader.info>, <adobe-photoshop.info>, <adobe-muse.info> and <adobe-dreamweaver.info> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 12, 2023
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