Dell Inc. v. Milen Radumilo
Claim Number: FA2010001917954
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, United States. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delltorrent.com>, registered with DropWeek.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 22, 2020; the Forum received payment on October 22, 2020.
On October 22, 2020, DropWeek.com, LLC confirmed by e-mail to the Forum that the <delltorrent.com> domain name is registered with DropWeek.com, LLC and that Respondent is the current registrant of the name. DropWeek.com, LLC has verified that Respondent is bound by the DropWeek.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 October 26, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 2020 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@delltorrent.com. Also on October 26, 2020, 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, the Forum transmitted to the parties a Notification of Respondent Default.
On November 20, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant, Dell Inc., provides computer products and services. Complainant has rights in the DELL mark based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,236,785, registered on April 6, 1999).
2. Respondent’s <delltorrent.com>[i] domain name is confusingly similar to Complainant’s mark because it includes the entire DELL mark and simply adds the term “torrent” and the “.com” generic top level domain (“gTLD”) to form the disputed domain name.
3. Respondent does not have rights or legitimate interests in the <delltorrent.com> domain name. Respondent is not commonly known by the domain name and Complainant has not licensed or permitted Respondent to use the DELL mark.
4. Additionally, Respondent does not use the domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent offers the domain for sale at an excessive price and uses the domain to either redirect users to third-party websites, resolve to a parked page with third-party hyperlinks, or to distribute malware.
5. Respondent registered and uses the <delltorrent.com> domain name in bad faith. Respondent offers the domain for sale at a price greater than out of pocket costs. Respondent also uses the domain name to redirect users to third-party websites and host third-party hyperlinks for commercial gain.
6. Additionally, Respondent uses the disputed domain name to disseminate malware.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the DELL mark. Respondent’s domain name is confusingly similar to Complainant’s DELL mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <delltorrent.com> domain name and that Respondent registered and uses the domain name 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 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”).
Complainant has rights in the DELL mark based on registration with the USPTO (e.g., Reg. No. 2,236,785, registered on April 6, 1999). Registration of a mark with the USPTO is a valid showing of rights in a mark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Because Complainant provides evidence of registration of the DELL mark with the USPTO, the Panel holds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <delltorrent.com> domain name is confusingly similar to Complainant’s mark because it includes the entire DELL mark and simply adds the term “torrent” and the “.com” gTLD. The addition of a term and gTLD to a mark is insufficient to distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”). Thus, the <delltorrent.com> domain name is confusingly similar to the DELL mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <delltorrent.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <delltorrent.com> domain name because Respondent is not commonly known by the domain name and Complainant has not licensed or permitted Respondent to use the DELL mark. When no response is submitted, WHOIS information can be used to show that a respondent is not commonly known by a domain name under Policy ¶ 4(c)(ii). See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Additionally, lack of permission or authorization to use a mark constitutes further showing that a respondent lacks rights in a mark. See SPTC, Inc. and Sotheby’s v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as “Tony Yeh shiun,” Complainant never authorized or permitted Respondent to use the SOTHEBY’S mark, and Respondent failed to submit a response.). Here, the WHOIS information lists “Milen Radumilo” as the registrant and nothing in the record shows that Complainant has permitted Respondent to use the DELL mark in any way. Thus, the Panel holds that Respondent is not commonly known by the <delltorrent.com> domain name under Policy ¶ 4(c)(ii).
Additionally, Complainant argues that Respondent does not use the <delltorrent.com> domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent offers the domain name for sale at an excessive price and uses the domain to either redirect users to third-party websites, resolve to a parked page with third-party hyperlinks, or to distribute malware. The offer to sell a domain name at an excessive price does not constitute a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See University of Rochester v. Park HyungJin, FA1410001587458 (Forum Dec. 9, 2014) (“The Panel finds Respondent’s willingness to sell this <perifacts.com> domain name in excess of out-of-pocket registration costs weighs against Respondent’s case for rights or legitimate interests in the domain name.”). Similarly, uses of a domain name incorporating the mark of another to host third-party hyperlinks, redirect Internet users to third-party websites, or distribute malware are not bona fide offerings of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum Aug. 20, 2015) (“The Panel finds that Respondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that Respondent has no other rights to the domain name, and finds that Respondent is not making a bona fide offering or a legitimate noncommercial or fair use.”); see also Harry Winston, Inc. v. Domain Admin / Whois Privacy Corp., FA 1749276 (Forum, Oct, 18, 2017) (holding that use of a domain name to redirect Internet users to a rotating series of third-party websites, some of which attempt to install malware on users’ computers, does not show the respondent has rights or legitimate interests in the domain name.). Complainant provides evidence that Respondent offers the <delltorrent.com> domain name for sale at a price of $9,888. Additionally, Complainant provides screenshots showing the domain name resolving to webpage with pay-per-click hyperlinks which would redirect users to a variety of unrelated websites, one of which prompts users to install a browser extension that Complainant contends, without contradiction in the record, is malware. Thus, the Panel holds that Respondent is not using the <delltorrent.com> domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <delltorrent.com> domain name in bad faith because Respondent offers to sell the domain at a price that far exceeds out of pocket costs. Under Policy ¶ 4(b)(i), a respondent’s offer to sell a domain name at an excessive price is evidence of bad faith. See Retail Royalty Company and AE Direct Co LLC v. Whois Foundation / DOMAIN MAY BE FOR SALE, CHECK AFTERNIC.COM Domain Admin, FA 1821246 (Forum Jan. 13, 2019) (“Respondent lists the disputed domain name for sale for $5,759, which is a price well in excess of out of pocket costs. Such an offering can evince bad faith under Policy ¶ 4(b)(i).”). Complainant provides evidence showing Respondent offers the <delltorrent.com> domain name for sale at a cost of $9,888. Therefore, the Panel finds bad faith under Policy ¶ 4(b)(i).
Complainant also argues that Respondent registered and uses the <delltorrent.com> domain name in bad faith because Respondent uses the domain name to redirect Internet users to third-party websites and host third-party hyperlinks for commercial gain. Per Policy ¶ 4(b)(iv), the use of a domain name incorporating the mark of another to host pay-per-click hyperlinks or redirect users to third-party websites for commercial gain is evidence of bad faith. See 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); see also Kmart v. Khan, FA 127708 (Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)). Complainant provides screenshots of the various third-party websites that the <delltorrent.com> domain name redirects to and from which Complainant presumes Respondent receives a referral fee, as well as the parked webpage that features third-party hyperlinks. Thus, the Panel finds bad faith registration and use under Policy ¶ 4(b)(iv).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <delltorrent.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 1, 2020
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