Dell Inc. v. PRAMOD SAGGAR / DIGITAL INDIA TECHNOLOGY
Claim Number: FA2003001889294
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Virginia. Respondent is PRAMOD SAGGAR / DIGITAL INDIA TECHNOLOGY (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell-service-center.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 March 23, 2020; the Forum received payment on March 23, 2020.
On March 24, 2020, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <dell-service-center.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 March 24, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 13, 2020 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-service-center.com. Also on March 24, 2020, 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.
A timely Response was received and determined to be complete on March 25, 2020.
Complainant sent an E-Mail to the Forum on March 25, 2017. Respondent sent an E-Mail to the Forum on April 17, 2020.
On April 17, 2020, 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.
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. Complainant has also developed a family of businesses, collectively known as Dell Technologies, that offers products and services related to technology, software, security, and more. Dell Technologies 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. Complainant has generated $91.3 billion in revenue in Fiscal Year 2019 and is #34 on the Fortune 500. As a consequence of Complainant’s 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 registration in the United States in 1994.
Complainant alleges that the domain name is confusingly similar to its DELL mark as it incorporates the mark in its entirety and merely adds the generic phrase “service center” along with the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name nor did Complainant license or permit Respondent to use its DELL mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent attempts to pass itself off as Complainant by offering similar services that compete with Respondent while featuring a similar color scheme found at Complainant’s official site.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith as Respondent attempts to pass itself off as Complainant by offering similar, competing services. Respondent had actual knowledge of Complainant’s rights in the DELL mark due to domain name featuring the mark and offering similar services to Complainant.
B. Respondent
In its E-Mail of March 25, 2017, Respondent states, in pertinent part:
“I cannot understand your concern about our new website?
We have recently buy this domain online, as it is easily available on internet …
We are the Authorized DELL Partner & DELL himself given us the privilege to be a partner with them.
We provide Repairing Services to all DELL LAPTOP customers.
We were proudly saying that DELL is the best BRAND to work with.
I am sending you one picture for your reference, which shows you our authentic association with DELL.
If DELL want us to not use this domain, we can stop this website right away. Even we can gift this domain to DELL Inc. as a friendship.
We do not want to harm anyone by doing un-ethical work, this is just a website, which we have created on DELL Laptop Customers demand.
Hope you are very much satisfied with my write-up. If anything you want to discuss with me, you can reach me anytime on the same eMail.
C. Additional Submissions
In its E-Mail of March 25, 2017, replying to Respondent’s E-Mail, Complainant states: “Thanks for your message. The quickest and easiest way to resolve this issue, and what Dell prefers, is to let the proceedings run their course. If you could please reply confirming that you are willing to transfer the domain name, the Panel will move forward with transferring it to our client. We very much appreciate your cooperation.”
In its E-Mail of April 17, 2020, replying to Complainant’s E-Mail, Respondent states, in pertinent part: “We do not want to harm any BRAND NAME. We know the value of BRAND Name. We are one of the authorised DELL Partner & we never want to harm our business relationship. I have already ordered to shutdown that website, which we have recently created only for DELL customer care Solution.”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
In the present case, Respondent has consented to transfer the disputed domain name to Complainant. That is, the parties have both asked for the domain name to be transferred to Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <dell-service-center.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 17, 2020
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