Wiluna Holdings, LLC v. Milen Radumilo
Claim Number: FA1809001804904
Complainant is Wiluna Holdings, LLC (“Complainant”), represented by John O’Malley of Volpe and Koenig, P.C., Pennsylvania, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <clpis4sale.com>, registered with DomainSprouts.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 6, 2018; the Forum received payment on September 6, 2018.
On September 6, 2018, DomainSprouts.com LLC confirmed by e-mail to the Forum that the <clpis4sale.com> domain name is registered with DomainSprouts.com LLC and that Respondent is the current registrant of the name. DomainSprouts.com LLC has verified that Respondent is bound by the DomainSprouts.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 September 7, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 27, 2018 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@cips4sale.com. Also on September 7, 2018, 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 October 1, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it engages in the business of offering adult-oriented materials under the CLIPS4SALE.COM mark, and has offered these services since at least as early as July 2003. Complainant has rights in the CLIPS4SALE.COM mark through its registration in the United States in 2008.
Complainant alleges that the disputed domain name is identical or confusingly similar to Complainant’s mark as it merely switches the adjacent letters “I” and “P.”
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to display links to third-party business to commercially benefit from pay-per-click fees.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business and attract, for commercial gain, users to the disputed domain name where it features links to unrelated, third-party websites. Further, Respondent engages in typosquatting when it registered the disputed domain name as it switches the adjacent letters “I” and “P” in Complainant’s CLIPS4SALE.COM mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CLIPS4SALE.COM and uses it to offer adult entertainment services.
Complainant’s rights in its marks date back to at least 2008.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a website that offers advertising links to unrelated products.
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 (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 is confusingly similar to Complainant’s CLIPS4SALE.COM mark as it merely switches the adjacent letters “I” and “P.” A change to a mark, such as a minor misspelling, does not negate any confusing similarity between a disputed domain name and a mark under Policy ¶4(a)(i). See Wiluna Holdings, LLC v. Zhichao Yang, FA 1804964 (Forum Oct. 1, 2018) (“Misspelling of a complainant’s mark, either by adding, removing, or transposing letters, does not sufficiently mitigate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i).”); see also Bechtel Group, Inc. v. Eliza Dushku, FA 1631725 (Forum Sept. 1, 2015) (finding <betchel.com> confusingly similar to BECHTEL); see also Exxon Mobil Corp. v. Orville Walk, FA 1503047 (Forum July 13, 2013) (finding <exxonmobile.net> confusingly similar to EXXONMOBIL). Therefore, the Panel finds that the <clpis4sale.com> domain name is confusingly similar to the CLIPS4SALE.COM mark under Policy ¶4(a)(i).
Complainant has not authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by a disputed domain name per Policy ¶ 4(c)(ii). See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum Jul. 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”). Here, the WHOIS information of record lists the registrant as “Milen Radumilo.” The Panel therefore finds that Respondent has not been commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). Instead, the resolving website hosts links to unrelated websites for Respondent’s own commercial gain. Using a confusingly similar domain name that resolves in a webpage offering generic hyperlinks generally fails to demonstrate a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Materia, Inc. v. Michele Dinoia, FA 1507001627209 (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.”). As such, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And it finds that Respondent has no rights or legitimate interests in the dispute domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s marks. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, Respondent uses the disputed domain name to disrupt Complainant’s business by creating a likelihood for confusion as to the source, sponsorship, affiliation, or endorsement of the disputed domain name to commercially benefit by offering links to unrelated, third-party websites. Using a disputed domain name that disrupts a complainant’s business and trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) or (iv). See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Dovetail Ventures, LLC v. Klayton Thorpe, FA 1506001625786 (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). Accordingly, the Panel finds that Respondent disrupts Complainant’s business and attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) and/or (iv).
Moreover, by switching the adjacent letters “I” and “P” in Complainant’s mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). As such, the Panel finds bad faith typosquatting under 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 <clpis4sale.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 2, 2018
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