Dell Inc. v. Shekhar Kumar
Claim Number: FA1904001839635
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Shekhar Kumar (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell-supportnumber.net>, registered with GoDaddy.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 April 19, 2019; the Forum received payment on April 19, 2019.
On April 22, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dell-supportnumber.net> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 22, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 13, 2019 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-supportnumber.net. Also on April 22, 2019, 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 May 15, 2019, 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 is a world leader in computers, computer accessories, and other computer-related products and services in over 180 countries. Complainant has rights in the DELL mark through its registration of the mark in the United States in 1994. The mark is registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain name is identical or confusingly similar to its mark as it incorporates the DELL mark entirely, adding the generic words “support” and “number” and the generic top-level domain (“gTLD”) “.net.”
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not an authorized provider of Complainant’s products or services nor has Complainant 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 displays Complainant’s mark, logo, and photos of Complainant’s products in an attempt to pass off as Complainant to promote its own competing services, likely in furtherance of a phishing scheme.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name to attempt to deceive consumers into thinking Respondent is associated with Complainant, likely for commercial gain. Respondent’s use of Complainant’s mark on the resolving webpage and the fame of the DELL mark demonstrate that knew of Complainant’s rights in the mark at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark DELL and uses it to market computer products and services around the world. The mark is famous.
Complainant’s rights in its marks date back to at least 1994.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website displays Complainant’s mark and logo and it offers services directly in competition with Complainant.
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”).
The disputed domain name is confusingly similar to Complainant’s mark as it incorporates the mark its entirety, merely adding the generic, descriptive words “support” and “number,” a hyphen, and the gTLD “.net.” Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Additionally, the addition of a hyphen is insufficient to distinguish a disputed domain name from a mark. See Daniel Handler v. Masanori Toriimoto / PLAN-B Co.,Ltd, FA 1778986 (Forum May 7, 2018) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy). The Panel therefore finds that the <dell-supportnumber.net> domain name is confusingly similar to Complainant’s DELL mark under Policy ¶ 4(a)(i).
Respondent is not an authorized provider of Complainant’s products or services and Complainant has not licensed or otherwise permitted Respondent to use the DELL mark. Respondent is not commonly known by the disputed domain name: absent a response, WHOIS information can be used to determine whether a Respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Shekhar Kumar”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name. Instead, Respondent displays Complainant’s mark and logo on the resolving webpage in an attempt to pass off as Complainant and offer services directly in competition with Complainant. Using a domain name to display a complainant’s mark and related images to pass off as a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding the respondent did not use the domain name to make a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii) where the website resolving from the disputed domain name featured the complainant’s mark and various photographs related to the complainant’s business). Additionally, using a disputed domain name to offer goods or services in competition with a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Gumwand Inc. v. jared brading, FA 1794058 (Forum Aug. 6, 2018) (finding that use of a confusingly similar domain name to resolve to a website which purported to sell chewing gum-removal equipment which was either counterfeit versions of Complainant’s goods, or goods which competed directly with Complainant’s chewing gum-removal equipment business, was not a bona fide offering of goods or services or a legitimate noncommercial or fair use within Policy ¶¶ 4(c)(i) or (iii)). Therefore, the Panel finds that Respondent does not use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). Moreover, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s famous mark. 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 attempt to pass off as Complainant and offer competing computer services. Use of a disputed domain name to pass off as a complainant and offer competing goods or services can support a finding of bad faith under Policy ¶¶ 4(b)(iii) and (iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business). Therefore, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith 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 <dell-supportnumber.net> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 15, 2019
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