Dell Inc. v. lv cai yun
Claim Number: FA1910001868207
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is lv cai yun (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell116.top> (‘the Domain Name’), registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 23, 2019; the Forum received payment on October 23, 2019.
On October 24, 2019, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <dell116.top> domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 October 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 18, 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@dell116.top. Also on October 29, 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 November 19, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows;
The Complainant is the owner of the DELL mark registered, inter alia, in the USA for computer related goods with first use recorded as 1992.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s trademark adding only the number ‘116’ and the gTLD .top which do not prevent such confusing similarity.
The Respondent does not have rights or legitimate rights in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used for a site which appears to be an official site of the Complainant using the Complainant’s official logo to offer computer products not associated with the Complainant. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is bad faith registration and use misleading Internet users for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the DELL mark registered, inter alia, in the USA for computer related goods with first use recorded as 1992.
The Domain Name registered in 2019 has been used to offer competing goods not of the Complainant’s manufacture using the Complainant’s official logo.
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”).
Preliminary Issue: Language of the Proceedings
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Identical or Confusingly Similar
The Domain Name in this Complaint combines the Complainant’s DELL mark (registered in the USA for goods and services relating to computers with first use recorded as 1992), the number ‘116’ and the gTLD .top.
An ordinary number and a gTLD do not serve to distinguish the Domain Name from the DELL mark, which is the distinctive component of the Domain Name. Re the gTLD see Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorized the Respondent to use the DELL mark.
The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The use of the Domain Name is commercial and so cannot be legitimate noncommercial use.
Panels have found that a respondent is not using a disputed domain name for a bona fide offering of goods or services nor a legitimate noncommercial or fair use if it uses the name to divert Internet users to a web site competing with the Complainant under its mark. See Coryn Group Inc. v. Media Insight, FA 198959 (Forum Dec. 5, 2003).
The use of the Complainant’s official logo on the web site attached to the Domain Name makes it clear that the Respondent was aware of the significance of the DELL name and the Complainant’s rights at the time of registration. The usage of the Complainant’s DELL mark which has a significant reputation in relation to computers is not fair as the site does not make it clear that there is no commercial connection with the Complainant and the use of the Complainant’s official logo in the Masthead of the site gives the impression that the web site is an official site of the Complainant when it is not. As such overall, this use cannot be a bona fide offering of goods and services.
The Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use the Complainant’s trademarks in this way. As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
As determined above the Respondent's use of the site is commercial and he is using it to make profit by associating itself with the Complainant in a confusing manner. The use of the Complainant’s official logo indicates the Respondent was aware of the Complainant’s rights at the time of registration and its use would cause people to associate the website at the Domain Name with the Complainant and its business and goods and services. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating likelihood of confusion with the Complainant’s trademarks as to the source, sponsorship, affiliation or endorsement of the web site and goods and services on it. This also appears designed to disrupt the business of a competitor. See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA 1762308 (Forum Jan 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy 4(b)(iii)); see also CAN Financial Corporation v. William Thomson/CAN Insurance, FA1401001541484 (Forum Feb 28, 2014) (finding that Respondent had engaged in bad faith under Policy 4(b)(iv) by using a confusingly similar domain name to attract internet users to its own site where it offered competing services).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith under ¶¶ 4(b)(iii) and (iv) and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dell116.top> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: November 19, 2019
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