DECISION

 

Asviro Inc. v. Katarzyna Bieniek

Claim Number: FA2505002156922

 

PARTIES

Complainant is Asviro Inc. ("Complainant"), represented by Brett Lewis of Lewis & Lin, LLC, New York USA. Respondent is Katarzyna Bieniek ("Respondent"), Poland.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <valumax.com> ('the Domain Name'), registered with Above.com Pty 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.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on May 22, 2025; Forum received payment on May 22, 2025.

 

On May 25, 2025, Above.com Pty Ltd. confirmed by e-mail to Forum that the <valumax.com> Domain Name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty 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 May 30, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 20, 2025 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@valumax.com. Also on May 30, 2025, 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 June 23, 2025 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne as Panelist.

 

On June 24, 2025 the Panel issued a procedural order requesting the Complainant to provide further documents proving it was the owner of common law rights in the name VALUMAX prior to the date of registration of the Domain Name, provide actual evidence that the Domain Name is being used for competing medical goods and provide the details of the prior UDRP cases in which the Respondent was found to have registered other domain names in bad faith. On June 27, 2025 the Complainant submitted the requested evidence.

 

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

The Complainant is the owner of common law rights in the mark VALUMAX used in the USA for medical supplies since at least 2002.

 

The Domain Name registered in 2005 and acquired by the Respondent in 2009 is identical to the Complainant's mark for the purposes of the Policy adding only the gTLD .com.

 

The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.

 

The Domain Name has been used for competing pay-per-click links. This is not a bona fide offering of goods or services or a legitimate non commercial or fair use. Respondent has acted in bad faith disrupting the Complainant's business and diverting Internet users for commercial gain with actual knowledge of the Complainant's rights.

 

The Respondent has been the subject of four other adverse decisions under the UDRP where she has been found to be in bad faith when registering other domain names containing third party trade marks.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

 The Complainant is the owner of common law rights in the mark VALUMAX used in the USA for medical supplies since at least 2002.

 

The Domain Name registered in 2005 and acquired by the Respondent in 2009 has been used for competing pay-per-click links. The Respondent has been the subject of four other adverse decisions under the UDRP where she has been found to be in bad faith when registering other domain names containing third party trade marks.

 

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 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").

 

Identical and/or Confusingly Similar

The Domain Name consists of the Complainant's VALUMAX trade mark (in which the Complainant owns common law rights due to use in commerce in the USA since at least 2002) and the gTLD .com.

 

The gTLD .com does not serve to distinguish the Domain Name from the Complainant's mark. See Red Hat Inc v Haecke, FA 726010 (Forum July 24, 2006) concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel holds that the Domain Name is identical for the purpose of the Policy to a mark in which the Complainant has rights.

 

As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.

 

Rights or Legitimate Interests

The Complainant has not authorised the use of its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use of the Domain Name is commercial and so is not legitimate non commercial fair use.

 

The Domain Name is being used for competing pay-per-click links. Use for commercial competing pay-per-click links does not constitute a bona fide offering of goods or services or a legitimate non commercial or fair use. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) ("Respondent's use of .. domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering."). McGuireWoods LLP v Mykhailo Loginov/Loginov Enterprises doo, FA 1584837 (Forum Jan 22, 2015) ("The Panel finds Respondent's use of the disputed domain names to feature parked hyperlinks containing links in competition with the Complainant ... is not a bona fide offering of goods or services pursuant to 4(c)(i) and it is not a legitimate non commercial or fair use pursuant to Policy 4 (b)(iii).").

 

The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant as set out herein.

 

As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

The Domain Name is being used for competing commercial pay-per-click links. Use of a domain name containing a mark with a reputation for pay-per-click links indicates bad faith being disruptive of the Complainant's business and diverting customers for commercial gain and can also indicate actual knowledge of the Complainant and its business.

 

Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to her website by creating a likelihood of confusion with the Complainant's trade mark as to the source, sponsorship, affiliation or endorsement of the web site or products or services offered on it likely to disrupt the business of the Complainant. See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA 1760954 (Forum Jan. 8, 2018) ("Respondent's hosting of links to Complainant's competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy 4(b)(iii)"); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA 1615034 (Forum June 4, 2015) (holding that the respondent's use of the <capitaloneonebank.com> domain name to display links to the complainant's competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy 4(b)(iv)). See also University of Rochester v. Park HyungJin, FA 1587458 (Forum Dec. 9, 2014) (where the Panel inferred Respondent's actual knowledge based on Respondent's use of the domain name to promote links related to the same field as where Complainant's mark is used).

 

The Panel also notes the four adverse decisions against the Respondent involving the marks of other third party trade mark owners indicating a pattern of bad faith activity. See Twentieth Century Fox Film Corporation v. oranges arecool XD / orangesarecool.com, FA 1558045 (Forum July 10, 2014) (finding that the respondent's prior adverse UDRP history was evidence of bad faith registration and use of the domain names under Policy ¶ 4(b)(ii)).

 

As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.

 

DECISION

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

 

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

 

 

 

Dawn Osborne, Panelist

Dated: June 30, 2025