Dell Inc. v. Milen Radumilo
Claim Number: FA2101001928161
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell-customer-service.us>, registered with Dynadot, 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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 13, 2021; the Forum received payment on January 13, 2021.
On January 14, 2021, Dynadot, LLC confirmed by e-mail to the Forum that the <dell-customer-service.us> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, LLC 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 January 14, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 3, 2021 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@dell-customer-service.us. Also on January 14, 2021, 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 February 8, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 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, 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, Dell Inc., is a world leader in computers and other computer-related 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. 1,616,571, registered October 9, 1990). Respondent’s <dell-customer-service.us> domain name is confusingly similar to Complainant’s mark since it incorporates the entire DELL mark and simply adds the generic phrase “customer service” and the “.us” county code top-level domain (“ccTLD”).
Respondent lacks rights and legitimate interests in the <dell-customer-service.us> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not licensed or permitted Respondent to use the DELL mark. Additionally, Respondent does not use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain to host a monetized parking page, inactively holds the disputed domain, and occasionally redirects the domain to third-party websites that attempt to install malware on users’ devices.
Respondent registered or uses the <dell-customer-service.us> domain name in bad faith. Respondent engages in a pattern of bad faith registration. Additionally, Respondent uses the domain to offer pay-per-click hyperlinks and sometimes redirects users to third-party websites in an attempt to distribute malware. Furthermore, Respondent inactively holds the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 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”).
Complainant asserts rights in the DELL mark based on registration with the USPTO (e.g., Reg. No. 1,616,571, registered October 9, 1990). Registration of a mark with the USPTO is a valid showing of rights in a mark. See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <dell-customer-service.us> domain name is confusingly similar to Complainant’s mark since it incorporates the entire DELL mark and simply adds the generic phrase “customer service” and the “.us” ccTLD. Under Policy ¶ 4(a)(i), the addition of a generic terms and a ccTLD are insufficient in differentiating a domain name from the mark it incorporates. 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).”); see also Allied Bldg. Prods. Corp. v. Henkel, FA 827652 (Forum Dec. 11, 2006) (holding that “it is well established that the top-level domain, here “.us,” is insignificant with regard to UDRP analysis” when determining confusing similarity). The Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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”). The Panel finds that Complainant has made a prima facie case.
Complainant argues that Respondent does not have rights or legitimate interests in the <dell-customer-service.us> domain name because Respondent is not commonly known by the disputed domain name and Complainant has not licensed or permitted Respondent to use the DELL mark. Under Policy ¶ 4(c)(iii), where a response is lacking, relevant WHOIS information may demonstrate that Respondent is not commonly known by a disputed domain name. See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Additionally, lack of authorization to use a mark constitutes a 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.). The WHOIS information of record notes “Milen Radumilo” as the registrant and no information suggests Complainant has authorized Respondent to use the DELL mark in any way. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii).
There is nothing in the available evidence which indicates that Respondent has rights in a mark identical to the disputed domain name, which would serve to satisfy Policy ¶ 4(c)(i). See HOM INNOVATIONS POUR L’ELEGANCE MASCULINE and HUBER HOLDINGS ASIA Limited v. PHMC GPE, FA 1658722 (Forum Mar. 14, 2016) (finding that Respondent was not the owner or beneficiary of a trade or service mark identical to the disputed domain name under Policy ¶ 4(c)(i), even when Complainant did not argue this point). The Panel finds that Respondent has failed to satisfy Policy ¶ 4(c)(i).
Complainant argues that Respondent does not use the <dell-customer-service.us> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use because Respondent uses the domain to host a monetized parking page, inactively holds the disputed domain, and occasionally redirects the domain to third-party websites that attempt to install malware on users’ devices. Under Policy ¶¶ 4(c)(ii) and (iv), the use of a disputed domain name to host a parked page with pay-per-click hyperlinks or redirect users to third-party website that disseminate malware is not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Forum Feb. 21, 2007) (holding that using an identical or confusingly similar domain name to earn click-through fees via sponsored links to a complainant’s competitors does not represent 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)); 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.). Likewise, failure to make active use of a disputed domain name also does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”). Complainant provides screenshots showing the disputed domain name resolves to a monetized parking page. Complainant also asserts that occasionally the disputed domain name resolves to a variety of third-party websites that prompt users to install a browser extension that Complainant contends is actually malware. The Panel finds that Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(ii) and (iv) and Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has proved this element.
Complainant argues that Respondent registered or uses the <dell-customer-service.us> domain name in bad faith because Respondent engages in a pattern of bad faith registration. Under Policy ¶ 4(b)(ii), previous UDRP rulings against a respondent may indicate a respondent engages in a pattern of bad faith registration. See Webster Financial Corporation and Webster Bank, National Association v. Above.com Domain Privacy, FA1209001464477 (Forum Nov. 30, 2012) (finding where the record reflected that the respondent had been a respondent in other UDRP proceedings in which it was ordered to transfer disputed domain names to various complainants established a pattern of bad faith registration and use of domain names and stood as evidence of bad faith in the registration and use of domain names under Policy ¶ 4(b)(ii)). Complainant asserts that a recent UDRP panel ordered Respondent to transfer the “delltorrent.com” domain name and in that case Respondent used a similar malware scheme involving browser extension downloads. This is evidence of bad faith under Policy ¶ 4(b)(ii).
Complainant argues that Respondent registered or uses the disputed domain name in bad faith because Respondent uses the domain to offer pay-per-click hyperlinks on the resolving parked page. Per Policy ¶¶ 4(b)(iii) and (iv), the use of a disputed domain name to offer competing or unrelated pay-per-click hyperlinks can be evidence of bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent uses pay-per-click hyperlinks on the resolving website, which redirects users to competing websites. The use of hyperlinks to disrupt and compete with a complainant’s business is evidence of bad faith registration and use under Policy ¶ 4(b)(iii).”); see also Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent registered and used the domain name in bad faith under Policy ¶ 4(b)(iv) where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Complainant provides a screenshot showing the disputed domain name resolves to a parked page with various pay-per-click hyperlinks. This is evidence of bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant contends Respondent’s use of the <dell-customer-service.us> domain name to distribute malware further indicates bad faith registration or use. The use of a disputed domain name as part of a scheme to install malware on Internet users’ devices is evidence of bad faith under Policy ¶ 4(a)(iii). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (“In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.”). Complainant provides screenshots showing that the various third-party websites the disputed domain name sometimes redirects to prompts users to install a browser extension that is likely malware. This is evidence that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant also argues that Respondent’s inactive holding of the disputed domain name is evidence of bad faith registration or use. Under Policy ¶ 4(a)(iii), failure to make active use of a disputed domain name may indicate bad faith. See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
The Panel finds that Complainant registered and uses the domain name in bad faith.
Complainant has proved this element.
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 <dell-customer-service.us> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
February 10, 2021
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