Dell Inc. v. Nitin Makkar / JKM Global Services
Claim Number: FA1909001863628
Complainant is Dell Inc. ("Complainant"), represented by Caitlin Costello, Virginia, USA. Respondent is Nitin Makkar / JKM Global Services ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell-drivers.us>, registered with NameCheap, Inc..
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 24, 2019; the Forum received payment on September 24, 2019.
On September 24, 2019, NameCheap, Inc. confirmed by email to the Forum that the <dell-drivers.us> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 September 24, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 15, 2019 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@dell-drivers.us. Also on September 24, 2019, the Written Notice of the Complaint, notifying Respondent of the email 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 16, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a leading seller of computers, computer accessories, and other computer-related products and services, with annual revenue of $91.3 billion. Complainant uses DELL and related marks in connection with this business, and asserts that the DELL mark has become famous in the United States and elsewhere as a result of Complainant's marketing and sales success. Complainant owns multiple U.S. trademark registrations for the DELL mark in both standard character and design form.
Respondent registered the disputed domain name <dell-drivers.us> in August 2019. The domain name is being used for a website that prominently displays Complainant's DELL mark and logo, along with images of Complainant's products. The website purports to offer technical support services for Complainant's products. Complainant states that the physical address that appears on the website appears to be false. Complainant alleges that the website copies the look and feel of Complainant's own website and is designed to deceive consumers into believing that it is at least affiliated with or authorized by Complainant. Complainant further alleges that Respondent owns other domain names that similarly incorporate well-known marks, including <hpcomsupport.us>, <mcaffe-help.us>, <pcgeeksquad.tech>, <pcgeeksquads.com>, <zoom-infotech.us>, and <zoominfotech.us>.
Complainant contends on the above grounds that the disputed domain name <dell-drivers.us> is confusingly similar to its DELL mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered or is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered or is being used in bad faith.
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 principles 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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <dell-drivers.us> incorporates Complainant's registered DELL trademark, adding a hyphen, the generic term "drivers" (which is associated with Complainant's products and services), and the ".us" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Dell Inc. v. Khairul Atjeh, FA 1798781 (Forum Aug. 20, 2018) (finding <delldrivers.co> confusingly similar to DELL); Dell Inc. v. BHUWANESHWAR KC / mmm bbb, FA 1675190 (Forum June 23, 2016) (finding <dell-service.us> confusingly similar to DELL). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used to promote services related to those offered by Complainant, in a manner designed to deceive users into believing there is a connection between Respondent and Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Dell Inc. v. Imtiyaz Ahmed, FA 1799096 (Forum Aug. 29, 2018) (finding lack of rights or legitimate interests in similar circumstances); Dell Inc. v. Khairul Atjeh, supra (same); Dell Inc. v. Vikas Kumar, FA 1796064 (Forum Aug. 8, 2018) (same); Dell Inc. v. BHUWANESHWAR KC / mmm bbb, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered or is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "[b]y using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name obviously intended to create confusion with Complainant, and is using it for a website that exploits this confusion, attempting to pass off as Complainant and promoting services related to those offered by Complainant. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Dell Inc. v. Imtiyaz Ahmed, supra (finding bad faith registration and use in similar circumstances); Dell Inc. v. Khairul Atjeh, supra (same); Dell Inc. v. Vikas Kumar, supra (same); Dell Inc. v. BHUWANESHWAR KC / mmm bbb, supra (same). Accordingly, the Panel finds that the disputed domain name was registered or is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dell-drivers.us> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 16, 2019
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