The Complainants are Eduard Orlov and Devolro Group, LLC, United States of America (“United States”), represented by Sergei Orel LLC, United States.
The Respondents are Agnessa Bobkova, Vasilii Bobkov, Galina Bobkova and Devolro Inc., United States, represented by Sanchelima & Associates, P.A., United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 7, 2020. On July 7, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same day, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainants on July 8, 2020 providing the registrant and contact information disclosed by the Registrar and inviting the Complainants to submit an amendment to the Complaint. The Complainants filed an amendment to the Complaint on July 14, 2020. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”). In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondents of the Complaint, and the proceedings commenced on July 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 5, 2020. The Response was filed with the Center on August 5, 2020. The Center appointed W. Scott Blackmer as the sole panelist in this matter on August 19, 2020. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. The Complainants submitted a supplemental filing on August 31, 2020, attaching a second amendment to the Complaint, a table of events, a Declaration of the Complainant Mr. Orlov, and a receipt for the renewal of the Domain Name in October 2016. 4. Factual Background The Complainant Mr. Orlov is an individual in the United States who established Devolro Inc. as a corporation in the State of Florida, United States in October 2011 for the business of customizing all-terrain and off-road vehicles. Mr. Orlov is also the managing member of the Complainant Devolro Group LLC, a limited liability company registered in Florida in January 2013, engaged in the same business. The Complainant Mr. Orlov registered the Domain Name on October 11, 2011, and screenshots from the Internet Archive’s Wayback Machine shows that the Domain Name was subsequently used for a website advertising the Complainants’ business. Devolro Inc. applied in 2012 for United States trademark registration of the standard character mark DEVOLRO (an anagram formed from the Complainant Mr. Orlov’s family and given names). The United States Patent and Trademark Office (“USPTO”) registered the mark on May 7, 2013, Registration Number 4331785. At some point, the Complainant Mr. Orlov began to work with the Respondents Bobkov family, although their accounts differ on the nature and purpose of their cooperation. The Complainant Mr. Orlov states that he furnished the Respondent Vasilii Bobkov with the access credentials for the Domain Name, and that the Respondent Mr. Bobkov’s daughter, the Respondent Agnessa Bobkova, changed the registrar and registration details, effectively taking control of the Domain Name. The current Registrar shows that the Domain Name was registered on July 18, 2018 by the Respondent Agnessa Bobkova. Screenshots show that the Domain Name continued to be used for a website advertising the business of Devolro Inc. On April 10, 2019, the Complainant Mr. Orlov executed a Share Purchase Agreement, attached to the Response, transferring all of the ownership shares in Devolro Inc. to the Respondent Vasilii Bobkov, in exchange for a purchase price of USD 20, and also providing that the Complainant Mr. Orlov would not be further employed with Devolro Inc. The Declaration of the Respondent Mr. Bobkov attached to the Response states that at this time the Respondent Mr. Bobkov replaced the Complainant Mr. Orlov as president of Devolro Inc. The Panel notes that this change is reflected in a filing that appears in the online database of the Florida Division of Corporations. The Complainant’s version of these events is that he was deceived by the Respondents, the Bobkovs. He sought to help them obtain permanent residency status in the United States by investing in a United States business, appointing the Respondent Mr. Bobkov as a manager of Devolro Group, LLC in return for an investment of USD 500,000. When that company became involved in litigation, the Respondent Mr. Bobkov asked to shift his participation to Devolro Inc. for purposes of his immigration application, promising to return the shares after the litigation was resolved, which he has not done. The Respondents deny the purpose of the investment but acknowledge that they invested USD 500,000 in Devolro Group LLC and withdrew from that company when they learned of its preexisting “business issues”. The Respondent Mr. Bobkov then purchased two other companies from the Complainant Mr. Orlov “at par”, Devolro Inc. and American Technology Ventures LLC. The Respondents contend that Devolro Inc. and its trademark had little value until the Respondent Mr. Bobkov acquired those companies and began to promote them. The Respondents deny promising to return the shares of Devolro Inc. to the Complainant. The Complaint attaches screenshots of the website to which the Domain Name resolved in July 2020, advertising the Devolro Design and Performance Studio, apparently at the same address as in archived screenshots, with a contact email in the AT Ventures domain. At the time of this Decision, however, the Domain Name resolves to a landing page in Russian, announcing that the site is hosted by AdminVPS but is now blocked because the term of payment for hosting has expired. The landing page has links advertising the services of AdminVPS. The Parties have not, so far, taken their dispute to the courts (which may be better suited to develop a fuller record of the broad dispute between the Parties), but they have waged war at the USPTO, seeking to wrest control over the DEVOLRO trademark, which was registered in the name of Devolro Inc. As reflected in the record (and in the USPTO online database), the Complainant Mr. Orlov’s attorney (who argues here that the Share Purchase Agreement is invalid) filed an assignment of the trademark dated March 20, 2020 from Devolro Inc. to the Complainant Mr. Orlov. Counsel for the Respondents countered with a June 20, 2020 “corrective assignment” from Devolro Inc. to Devolro Inc., invalidating the Complainant Mr. Orlov’s assignment. Counsel for the Complainant Mr. Orlov riposted with a July 9, 2020 “nunc pro tunc” assignment from Devolro, Inc. to Devolro Group, LLC “effective February 4, 2013” when the Complainant Mr. Orlov was unquestionably still president of Devolro Inc. The Respondents changed tack slightly, with a July 20, 2020 assignment from Devolro Inc. to American Technology Ventures, LLC, the other company they had purchased from the Complainant Mr. Orlov. This is the company that is now shown as the “last listed owner” of the trademark on the USPTO online database. Meanwhile, the Complainant Mr. Orlov applied to USPTO on June 15, 2020 (Serial Number Number 90001008) to register DEVOLRO as a standard character mark, showing Registration Number 4331785 as a “prior registration”. According to the USPTO online database, that application has not yet been assigned for examination. In a Declaration submitted with the Complainants’ supplemental filing, the Complainant Mr. Orlov states that in creating Devolro Group, LLC in February 2013, he contributed the DEVOLRO trademark to Devolro Group, LLC and that he is now the sole owner of Devolro Group, LLC. The Declaration attaches documentation concerning the purchase and subsequent sale of ownership interests in Devolro Group, LLC by the Respondent Mr. Bobkov and an earlier party, leaving the Complainant Mr. Orlov as the sole owner. The Complainant Mr. Orlov also states that the Respondent Agnessa Bobkova stole his user ID and password from his computer and changed the Domain Name registrar and hosting on September 10, 2019, as part of the Bobkov family’s fraudulent activity. Attached to the Declaration is a receipt showing that in October 2016 the Complainant Mr. Orlov had renewed the Domain Name registration and hosting with the original Registrar for five years. 5. Parties’ Contentions A. Complainant The amended Complaint asserts that the Domain Name is identical or confusingly similar to the trademark DEVOLRO, which the Complainant Mr. Orlov created and has used in his business since 2011, and that the Complainant Mr. Orlov is “the rightful and sole owner” of the existing DEVOLRO United States trademark registration and the new, pending application for trademark registration. In the Complainants’ supplemental filing, the second amendment to the Complaint states instead that the Complainant Mr. Orlov contributed the trademark to Devorlo Group, LLC when it was created in 2013 and that Devolro Group LLC, which is now wholly owned by the Complainant Mr. Orlov, is the sole owner of the DEVOLRO trademark. The Complainants contend that the Respondents have no rights or legitimate interests in the Domain Name. The Complainants argue that the transfer of control of the Domain Name was fraudulent and the transfer of all of the shares of Devolro Inc. was made “under false pretenses”. The Complaint argues that the Respondent Mr. Bobkov “has been using the domain devolro.com in bad faith, without Complainant Eduard Orlov's permission, and with the sole purpose to interfere with Mr. Orlov's DEVOLRO business.” B. Respondent The Respondents contend that the Complainants do not have rights to the trademark DEVOLRO since selling all ownership shares of Devolro Inc., the original trademark owner, to the Respondent Mr. Bobkov in April 2019. Since then, the Respondent Mr. Bobkov has been president of the company and has recently assigned ownership of the mark to another company he controls, American Technology Ventures, LLC. The Respondents state they have invested considerable time and money promoting the DEVOLRO brand in the auto customization business. The Response asserts that, “[f]ollowing Mr. Bobkov’s acquisition of all shares of Devolro Inc., the domain name devolro.com was registered to promote and use in commerce the DEVOLRO mark.” 6. Discussion and Findings Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following: (i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and (ii) the respondent has no rights or legitimate interests in respect of the domain name; and (iii) the domain name has been registered and is being used in bad faith. Under paragraph 15(a) of the Rules, “[a] Panel shall 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”. 6.1 Preliminary Matter: Multiple Parties The Rules, paragraph 3(c), contemplate that a complaint may relate to more than one domain name, provided that the domain names are registered by the same person, while paragraph 10(e) also gives UDRP panels the authority to consolidate multiple domain name disputes. In assessing whether a complaint may be filed by multiple complainants, as in this proceeding, UDRP panels consider whether (i) the complainants have a specific common grievance against the respondent, or the respondent has engaged in common conduct that has affected the complainants in a similar fashion, and (ii) it would be equitable and procedurally efficient to permit the consolidation. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.11.1. Similarly, where there are multiple respondents (which is also the case here), panels look at whether “(i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties”. Procedural efficiency is also a consideration in consolidation scenarios. Here, the Complainant Mr. Orlov owns Devolro Group, LLC, which he evidently uses in his business, and he claims to have assigned ownership of the relevant trademark to the company, although it is not currently listed as the owner of record. The Respondent Mr. Bobkov was for a time also an owner and manager of the company. Given these facts, the Panel finds that it is appropriate to include Devolro Group, LLC as a Complainant party. Similarly, the record does not reveal exactly how members of the Bobkov family apart from the Respondent Vasilii Bobkov were involved in the relevant transactions, except that daughter Agnessa Bobkova is listed as the current registrant of the Domain Name registration. Only the Respondent Vasilii Bobkov appears as an officer of Devolro Inc. or a signatory on relevant legal documents. Nevertheless, the Complainants and the Respondents refer to the family members as involved in the several enterprises at issue, the material facts are intertwined, and the Respondent Agnessa Bobkova in particular must be included as the current registrant of record. Hence, the Panel will proceed to a Decision with all Parties as listed in the caption. 6.2 Preliminary Matter: Supplemental Filings The Complainants submitted supplemental filings. Neither the Rules nor the Supplemental Rules make provision for supplemental filings, except at the request of the panel (see Rules, paragraph 12). Paragraph 10 of the Rules enjoins the panel to conduct the proceeding “with due expedition”. Therefore, UDRP panels are typically reluctant to countenance delay through additional rounds of pleading and normally accept supplemental filings only to consider material new evidence or provide a fair opportunity to respond to arguments that could not reasonably have been anticipated. See WIPO Overview 3.0, section 4.6. The supplemental filings here largely include statements and supporting documents that could have been submitted with the original pleadings. Nevertheless, as both Parties filed purported trademark assignments with USPTO after the Complaint was filed in this proceeding, the Panel will take the supplemental submissions into consideration. A. Identical or Confusingly Similar The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a reasoned but relatively straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview 3.0, section 1.7. Here, the Domain Name incorporates the claimed trademark in its entirety. The generic Top-Level Domain (“gTLD”) “.com” “is viewed as a standard registration requirement” and as such is normally disregarded under the first element of the Policy. Id., section 1.11.2. The problem is that the Complainants have not established that they own the registered DEVOLRO trademark. The mark was registered by Devolro Inc., and the Complainant Mr. Orlov sold all of his interest in that company to the Respondent Mr. Bobkov in April 2019. The Complainants first argued that the sale of the company was invalid, but that is not a matter that can be resolved in this UDRP proceeding. The Complainants then argued in the supplemental filing that the Complainant Mr. Orlov “contributed” the trademark to the Complainant Devolro Group, LLC when that company was created in 2013, but there is no contemporaneous evidence of this. Instead, the Complainant Mr. Orlov attempted to create a time machine, filing with USPTO on July 9, 2020 an assignment “nunc pro tunc” and labelling it “effective February 4, 2013” to transfer ownership from Devolro Inc. to Devolro Group, LLC. But the Respondent Mr. Bobkov, who actually controls Devolro Inc., then assigned the trademark to American Technology Ventures, LLC, which USPTO now lists as the trademark’s owner of record. Thus, USPTO does not recognize either Complainant as the owner of the registered DEVOLRO trademark, and the Panel does not find compelling evidence to reach a contrary conclusion. The Panel also cannot recognize the Complainants’ pending trademark application as furnishing standing for a UDRP complaint, as this element of the Policy requires present trademark rights. See WIPO Overview 3.0, section 1.1.4. The Complainants might conceivably claim an interest in DEVOLRO as an unregistered, common law mark (although this is obviously problematic given the registered mark), but the Complainants do not include necessary supporting evidence (see id., section 1.3). It is not evident on this record, for example, if and how the Complainants currently continue to do business under the DEVOLRO mark. The Panel finds that the Complainants have failed to establish the first element of the Complaint. Although this is dispositive of the present Complaint, the Panel will comment on the other two elements for the benefit of the Parties in a UDRP context. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the Respondents may establish rights or legitimate interests in the Domain Name, by demonstrating any of the following: (i) before any notice to it of the dispute, the Respondents’ use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or (ii) that the Respondents have been commonly known by the Domain Name, even if they have acquired no trademark or service mark rights; or (iii) the Respondents are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. The Respondents claim a legitimate interest in the Domain Name “[f]ollowing Mr. Bobkov’s acquisition of all shares of Devolro Inc.” in April 2019. The transfer of ownership of Devolro Inc., which was recorded with the state authorities, tends to undermine the relevance of the Complainant Mr. Orlov’s unsubstantiated claim that the Respondent Agnessa Bobkova subsequently “stole” his access credentials and changed the Domain Name registration in September 2019. It is not clear on this record what happened in July 2018, when the Registrar reports a change in the registration details; none of the Parties refer to a material event at that time. A respondent’s rights or legitimate interests are generally assessed at the time of the UDRP proceeding (see WIPO Overview 3.0, section 2.11). At the time the Complaint was filed in this proceeding, the owner of record of a corresponding trademark registration for the DEVOLRO mark was the Respondent Devolro Inc., and at the time of this Decision it is a company owned by the Respondent Mr. Bobkov. Thus, the Respondent would normally satisfy the requirements for a finding of rights or legitimate interests. C. Registered and Used in Bad Faith The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following (in which “you” refers to the registrant of the domain name): “(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product or service on your web site or location.” Without citing these provisions, the Complainants suggest that the Respondents’ intent was to misappropriate the Domain Name and the Complainants’ business and to “interfere” with the Complainants’ business. The Respondents’ reply is that they acquired the Complainants’ business, which was doing poorly until they took over, and that this acquisition included the trademark and Domain Name. The record does not indicate to what extent the Respondents, the Bobkovs, worked with the Complainants before the sale of the corporate shares in April 2019, and there is little or no supporting evidence for key assertions by the Complainants such as the 2013 transfer of the trademark to Devolro Group, LLC, the theft of the Domain Name access credentials, and oral promises at the time of the sale of the corporation. The Complainants bear the burden of proof on the element of bad faith, and on balance it seems unlikely that they could prevail on this record under the Policy. 7. Decision For the foregoing reasons, the Complaint is denied. W. Scott Blackmer
Sole Panelist
Date: September 2, 2020
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