Dell Inc. v. Ganesh Ganga / Raminfotech Chennai PVT Ltd
Claim Number: FA1909001861693
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Ganesh Ganga / Raminfotech Chennai PVT Ltd (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellllaptopservicecentersinchennai.com>, 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 September 11, 2019; the Forum received payment on September 11, 2019.
On September 12, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dellllaptopservicecentersinchennai.com> 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 September 12, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 2, 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@dellllaptopservicecentersinchennai.com. Also on September 12, 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. Respondent did however send e-mails to the Forum, see below.
On October 3, 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 goods and services. Complainant provides the essential infrastructure for organizations to build their digital future, transform IT, and protect their most important asset, information. Over the years, Complainant has invested heavily in marketing under its marks, devoting hundreds of millions of dollars to advertising and promoting its products and services through many media in many countries. Complainant has used television, radio, magazines, newspapers, and the Internet as marketing media. Complainant has been, and continues to be, extremely successful. Complainant sells its products and services in over 180 countries, including India. It has generated $91.3 billion in revenue in Fiscal Year 2019 and is #35 on the Fortune 500. As a consequence of its marketing and sales success, Complainant and its marks have become famous in the United States and many other countries. Complainant has rights in the DELL mark through its trademark registration in the United States in 1994.
Complainant alleges that the disputed domain name is confusingly similar to its DELL mark as it incorporates the mark in its entirety, merely adding the generic phrase “laptop service center,” the geographic indicator “in Chennai” and a “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not licensed or otherwise permitted to use Complainant’s DELL mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to mimic Complainant’s website in order to offer computer repair services that directly compete with Complainant. Respondent also collects users’ information in order abuse that information or sell it to third parties.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name by creating a likelihood of confusion as to source, sponsorship, affiliation or endorsement of Respondent’s website. Respondent uses the domain name to feature Complainant’s logo in connection with competing, computer repair services. Respondent also attempts to obtain users’ personal information. Finally, Respondent had knowledge of Complainant’s rights in the DELL mark based on its use of the domain name to offer competing services.
B. Respondent
Respondent failed to submit a Response in this proceeding. It its e-mails to the Forum Respondent states, verbatim: “Sorry Now Web Site Removed Dell Name Removed”; “Now All Dell Logo And Contact Page All Legal Words removed”; and “Url not Dell url definitely different all Dell logo and Dell photo”.
Complainant owns the mark DELL and uses it to market computer products and services. The mark is famous.
Complainant’s rights in its mark date back to 1994.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays Complainant’s mark and logo, and offers services that compete with those of 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 incorporates Complainant’s mark in its entirety, merely adding and extra letter “l”, the generic phrase “laptop service center,” the geographic indicator “in Chennai” and a “.com” gTLD. Such changes are not sufficient to distinguish a domain name from an incorporated mark in a Policy ¶ 4(a)(i) analysis. See Taboola.com Ltd. v. Gear Adx, FA 1858744 (Forum Sept. 21, 2019) (finding that the domain name <taboolla.com> was confusingly similar to the mark TABOOLA because “a misspelling such as addition of a letter does not distinguish the Domain Name from the Complainant's trademark pursuant to the Policy”); see also The Gap, Inc. v. PrivacyProtect.org c/o Domain Admin, FA 1332394 (Forum Aug. 16, 2010) (finding that the domain name <banannarepublic.com> was confusingly similar to the mark BANANA REPUBLIC); see also 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); see also General Motors LLC v. Domain Admin, Privacy Protection Service INC d/b/a PrivacyProtect.org, FA 1656166 (Forum Feb. 12, 2016) (finding respondent’s <gm-uzbekistan.com> domain name confusingly similar to complainant’s GM mark as the addition of the geographic term “uzbekistan” is inconsequential to a Policy ¶ 4(a)(i) analysis). The Panel therefore finds that the <dellllaptopservicecentersinchennai.com> domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its DELL 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. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 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 of the 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 identifies the registrant of the disputed domain name as “Ganesh Ganga / Raminfotech Chennai PVT Ltd.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
The disputed name resolves to a website that displays Complainant’s mark and logo and offers computer repair services that compete with Complainant’s business. The website gives the false impression that it is affiliated with, and authorized by, Complainant Such use is not indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s 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 name.
Indeed, as already noted, the resolving website displays Complainant’s mark and logo and offers services that compete with those of Complainant. Use of a domain name to create a false impression of affiliation with a complainant in order to compete with and disrupt the complainant’s business is behavior indicative of bad faith registration and use per Policy ¶ 4(b)(iv). See Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”); see also Citadel LLC and its related entity, KCG IP Holdings, LLC v. Joel Lespinasse / Radius Group, FA1409001579141 (Forum Oct. 15, 2014) (“Here, the Panel finds evidence of Policy ¶ 4(b)(iv) bad faith as Respondent has used the confusingly similar domain name to promote its own financial management and consulting services in competition with Complainant.”). The Panel therefore finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(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 <dellllaptopservicecentersinchennai.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 3, 2019
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