DECISION
Xerox Business Solutions Inc. v. Milen Radumilo
Claim Number: FA2403002090163
PARTIES
Complainant is Xerox Business Solutions Inc. ("Complainant"), represented by Jeanette Eriksson of FairWinds Partners LLC, District of Columbia, USA. Respondent is Milen Radumilo ("Respondent"), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mylewan.com>, registered with DropCatch.com 907 LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on March 25, 2024. Forum received payment on March 25, 2024.
On March 26, 2024, DropCatch.com 907 LLC confirmed by e-mail to Forum that the <mylewan.com> domain name is registered with DropCatch.com 907 LLC and that Respondent is the current registrant of the name. DropCatch.com 907 LLC has verified that Respondent is bound by the DropCatch.com 907 LLC 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 March 26, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 15, 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@mylewan.com. Also on March 26, 2024, 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 April 16, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES' CONTENTIONS
A. Complainant
Complainant, Xerox Business Solutions Inc., is a highly skilled technology solutions provider for commercial, state & local and education customers. Under the LEWAN trademark, Complainant offers a single source for a business' technology consulting, implementation, service, support and supply needs.
Through websites hosted by the domain names <lewan.com> and, formerly <mylewan.com>, which Complainant inadvertently allowed to lapse, Complainant has provided information to current and prospective customers about its many different products and services.
Complainant has rights in the LEWAN mark through registration with the United States Patent and Trademark Office ("USPTO"). As a result of Complainant's long usage and promotion of the LEWAN mark, it has become widely recognized in the technology industry. Respondent's <mylewan.com> domain name is confusingly similar to Complainant's LEWAN mark.
Respondent lacks rights or legitimate interests in the <mylewan.com> domain name since Respondent is not licensed or authorized to use Complainant's LEWAN mark and there is no evidence to suggest that Respondent is commonly known by the domain name, nor the terms "Lewan" or "MyLewan". Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to redirect users to a rotating series of third-party malware websites under what is sometimes known as the "Automatic Rapid Redirection to Malware" or ARRM (also referred to as "fast-flux DNS" or FFDNS.) In this form of registration abuse, users are ultimately forwarded to a site that attempts to install malware on the user's computer. Additionally, the domain name is listed for sale.
Respondent registered the <mylewan.com> domain name in bad faith with actual knowledge of Complainant's rights in the LEWAN mark and uses it in bad faith for the purposes of using Complainant's mark to attract Internet traffic, tarnish the trademark through malware distribution and ultimately sell the domain name for Respondent's own financial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
Complainant has established all the elements entitling it to relief.
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."
(i) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) 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 as 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
Complainant has shown that it has rights in the LEWAN mark through registration with the USPTO (Reg. No. 2227177, registered on March 2, 1999). The Panel finds Respondent's <mylewan.com> domain name to be confusingly similar to Complainant's mark, only differing by the addition of the generic word "my", which does nothing to distinguish the domain name from the mark, and the inconsequential ".com" generic top-level domain ("gTLD"), which may be ignored. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
Complainant has established this element.
Rights or Legitimate Interests
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <mylewan.com> domain name was registered on February 25, 2024, many years after Complainant's LEWAN mark had become widely recognized in the technology industry. It resolves to a rotating series of third-party ARRM malware websites. MX records are set up, enabling emails purporting to be from Complainant to be sent from the domain name address.
These circumstances, together with Complainant's assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <mylewan.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out some circumstances which shall be evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy. As noted in the WIPO Jurisprudential Overview 3.0, Section 3.1, those circumstances are not exclusive and a complainant may demonstrate bad faith under paragraph 4(a)(iii) by showing that a respondent seeks to take unfair advantage of, abuse, or otherwise engage in behavior detrimental to the complainant's trademark.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant's well-known LEWAN mark when Respondent registered the <mylewan.com> domain name and that Respondent did so in bad faith and is using the domain name in bad faith to install malware on Internet users' devices.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mylewan.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: April 18, 2024
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