DECISION

 

LPL Financial LLC v. Milen Radumilo

Claim Number: FA2312002075563

 

PARTIES

Complainant is LPL Financial LLC ("Complainant"), represented by David Taylor of Hogan Lovells LLP, France. Respondent is Milen Radumilo ("Respondent"), Romania.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <lplfnance.us>, registered with CommuniGal Communication Ltd.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on December 18, 2023; Forum received payment on December 18, 2023.

 

On December 21, 2023, CommuniGal Communication Ltd. confirmed by e-mail to Forum that the <lplfnance.us> 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 the U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").

 

On December 21, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 10, 2024 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@lplfnance.us. Also on December 21, 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 January 11, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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 to the usTLD Dispute Resolution Policy ("Rules"). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

1.       Respondent's <lplfnance.us> domain name is confusingly similar to Complainant's LPL FINANCIAL mark.

 

2.       Respondent does not have any rights or legitimate interests in the <lplfnance.us> domain name.

 

3.       Respondent registered and uses the <lplfnance.us> domain name in bad faith.

 

B. Respondent did not file a Response.

 

FINDINGS

Complainant holds a registration for the LPL FINANCIAL mark with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,662,425, registered August 4, 2009).

 

Respondent registered the <lplfnance.us> domain name on November 16, 2023, and uses it to divert users to third party webpages.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The Panel finds that Complainant has rights in the LPL FINANCIAL mark through 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 <lplfnance.us> domain name uses a shortened, misspelled version of Complainant's LPL FINANCIAL mark and adds the ".us" TLD. These changes do not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) ("Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD '.com.'  This is insufficient to distinguish the disputed domain names from Complainant's trademark.").  Therefore, the Panel finds that Respondent's <lplfnance.us> domain name is confusingly similar to Complainant's LPL FINANCIAL mark.

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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 <lplfnance.us> domain name as Respondent is not commonly known by the domain name and Complainant has not authorized or licensed to Respondent any rights in the LPL FINANCIAL 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. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent's use of the same); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) ("lack of evidence in the record to indicate a respondent is authorized to use [the] complainant's mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)").

 

Complainant contends that Respondent fails to use the <lplfnance.us> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use as the domain name resolves to a webpage with links to third party websites. Using a disputed domain name to provide links 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 Vance Int'l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). Complainant provides evidence showing that the disputed domain name resolves to pay-per-click links such as "Advisors" and "Investments", which then redirect users to furniture or apparel companies. The Panel finds 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).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration or Use in Bad Faith

Complainant claims that Respondent registered and uses the <lplfnance.us> domain name in bad faith by using it to provide pay-per-click links. The Panel agrees and finds bad faith attraction for commercial gain under Policy ¶ 4(b)(iv).  See CFA Properties, Inc. v. El Mariache/ Mariache Corp, FA 1660175 (Forum Mar. 8, 2016) (finding bad faith registration and use because "Respondent used the <chickfilafoundation.org> domain name to attract Internet users for commercial gain because the resolving website contains links to third party businesses, from which Respondent presumably receives pay-per-click fees.").

 

Complainant cites Respondent's general offer to sell the disputed domain name for $2888, more than out-of-pocket costs, as further evidence of bad faith. The Panel agrees and finds bad faith under Policy ¶ 4(b)(i).  See Caterpillar Inc. v. Holding Account, FA 1835712 (Forum Apr. 21, 2019) ("Respondent's apparent offer to sell the domain name for an amount which is in excess of its out-of-pocket costs indicates Respondent's bad faith registration and use of the domain name per Policy ¶ 4(b)(i).").

 

Complainant contends that Respondent registered the <lplfnance.us> domain name with actual knowledge of Complainant's rights in the LPL FINANCIAL mark.  The Panel agrees, noting Respondent's intentional misspelling of the mark in the disputed domain name, and finds bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").

        

Complainant argues that Respondent registered and uses the <lplfnance.us> domain name in bad faith as part of a pattern of bad faith. Complainant shows that Respondent has been the subject of several adverse UDRP rulings. Therefore, the Panel finds further bad faith under Policy ¶¶ 4(b)(ii). See Health Republic Insurance Company v. Above.com Legal, FA 1622088 (Forum July 10, 2015) ("Complainant has provided evidence that Respondent has a history of UDRP and USDRP decisions decided against it. This establishes bad faith within the meaning of Policy ¶ 4(b)(ii)."). 

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <lplfnance.us> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated: January 13, 2024