Energizer Brands, LLC v. Milen Radumilo
Claim Number: FA1604001670639
Complainant is Energizer Brands, LLC ("Complainant"), represented by John Gary Maynard, Virginia, USA. Respondent is Milen Radumilo ("Respondent"), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <saidenergizer.com>, registered with Biglizarddomains.com LLC.
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 the Forum electronically on April 15, 2016; the Forum received payment on April 15, 2016.
On April 15, 2016, Biglizarddomains.com LLC confirmed by email to the Forum that the <saidenergizer.com> domain name is registered with Biglizarddomains.com LLC and that Respondent is the current registrant of the name. Biglizarddomains.com LLC has verified that Respondent is bound by the Biglizarddomains.com 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 April 15, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 5, 2016 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@saidenergizer.com. Also on April 15, 2016, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On May 9, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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 one of the world's leading battery manufacturers. Complainant has used the ENERGIZER mark for sixty years in connection with batteries, flashlights, and other goods. The mark and variations thereof are registered in jurisdictions worldwide, including the United States, Romania, and the European Community.
The disputed domain name <saidenergizer.com> was registered through a privacy service in December 2015, concealing the registrant's identity. Complainant contends that the disputed domain name is confusingly similar to its ENERGIZER 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. In support thereof, Complainant states that Respondent is not commonly known by the domain name, and that Complainant has never authorized Respondent to use its mark. Complainant states further that the domain name is being used for a website that displays a search engine and "related links," including links to Complainant's own business and to some of Complainant's competitors.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar 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 has been 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) ("In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.").
The disputed domain name corresponds to Complainant's ENERGIZER mark, adding the generic term "said" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Eveready Battery Co. v. Ho Nim, D2010-1799 (WIPO Nov. 24, 2010) (finding <energizerlighting.com> confusingly similar to ENERGIZER); Cheesecake Factory Inc. & Cheesecake Factory Assets Co., LLC v. Say Cheesecake, D2005-0766 (WIPO Sept. 12, 2005) (finding <saycheesecakefactory.com> confusingly similar to CHEESECAKEFACTORY).
The Panel finds that the disputed domain name is confusingly similar to Complainant's mark.
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 Prods., Inc. v. Entm't Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and its only apparent use has been for a website comprised of pay-per-click links. 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 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 has been used in bad faith. Paragraph 4(b) of the Policy sets forth the following circumstances that serve as evidence of bad faith:
(1) the domain name was registered primarily for the purpose of profiting from the sale or transfer to Complainant or a competitor thereof;
(2) the domain name was registered to prevent Complainant from reflecting its mark in a corresponding domain name, by one who has engaged in a pattern of such conduct;
(3) the domain name was registered primarily for the purpose of disrupting the business of a competitor; or
(4) the domain name has been used intentionally to attract, for commercial gain, Internet users to Respondent's website by creating a likelihood of confusion with Complainant's mark.
Respondent registered a domain name that incorporates Complainant's well-known mark, and is using the domain name for the purpose of displaying and presumably profiting from links to third-party websites. The statement "Buy this domain" appears prominently on Respondent's website. Complainant states that links to its competitors appear in the "related links" on Respondent's website, and also on the pages that are displayed "by simply typing in the name of one of Complainant's competitors in the search engine" displayed on the main page of the site. Disregarding links that appear only when one searches for a competitor's name, the Panel still finds sufficient evidence to support an inference that Respondent's registration and use of the disputed domain name were targeted at Complainant and its mark
In addition, the Panel notes that Respondent has been involved in at least five previous proceedings under the Policy, each of which resulted in a decision adverse to Respondent. See Fenix Outdoor AB v. Milen Radumilo, D2016-0333 (WIPO Apr. 12, 2016) (<fjällräven.com>); Celgene Corp. v. Milen Radumilo, D2016-0018 (WIPO Feb. 22, 2016) (<celgeneriskmanagment.com>); Intesa Sanpaolo S.p.A. v. Privacy Protection Service, Communigal Communication Ltd / Milen Radumilo, D2015-2290 (WIPO Feb. 17, 2016) (<intesasanoaolo.com>); Carrefour v. Milen Radumilo / United Privacy Corp, D2015-1851 (WIPO Dec. 22, 2015) (<carrefour-sa.com>); Bharti Airtel Ltd. v. Milen Radumilo, D2015-1948 (WIPO Dec. 7, 2015) (<airtelpayment.com>).
Respondent's conduct is indicative of bad faith registration and use under paragraphs 4(b)(i), 4(b)(iii), and 4(b)(iv), and the series of adverse decisions under the Policy suggests a pattern of bad faith registrations under paragraph 4(b)(ii). Respondent's use of a privacy service to conceal his identity, though not dispositive, lends further support to the inference of bad faith intent. 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 <saidenergizer.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 9, 2016
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