Dell Inc. v. Vladimir Talanov
Claim Number: FA2201001979989
Complainant is Dell Inc. (“Complainant”), represented by Kimberly Arriola, Virginia, USA. Respondent is Vladimir Talanov (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <alienware-servisniy.center> and <dell-servisniy.center>, registered with Hosting Concepts B.V. d/b/a Registrar.eu.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 11, 2022. The Forum received payment on January 12, 2022.
On January 12, 2022, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by e-mail to the Forum that the <alienware-servisniy.center> and <dell-servisniy.center> domain names are registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the names. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 January 14, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 3, 2022 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@alienware-servisniy.center and postmaster@dell-servisniy.center. Also on January 14, 2022, 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 February 7, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has rights in the ALIENWARE and DELL marks through registration of the marks with the United States Patent and Trademark Office (“USPTO”). Respondent’s <alienware-servisniy.center> and <dell-servisniy.center> domain names are confusingly similar to Complainant’s ALIENWARE and DELL marks.
Respondent lacks rights or legitimate interests in the <alienware-servisniy.center> and <dell-servisniy.center> domain names as Respondent is not commonly known by the domain names nor did Complainant authorize Respondent to use the ALIENWARE or DELL marks in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use of the domain names. Instead, Respondent’s domain names resolve to webpages that make use of Complainant’s marks and attempt to provide services that compete with Complainant’s business.
Respondent registered and used the <alienware-servisniy.center> and <dell-servisniy.center> domain name in bad faith as Respondent’s domain names attempt to offer competing services to Complainant’s business. Respondent had actual knowledge of Complainant’s rights in the ALIENWARE and DELL marks due to the fame and longstanding use of the marks in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Complainant has shown that it has rights in the ALIENWARE and DELL marks through registration of the marks with the USPTO (ALIENWARE – Reg. No. 2,616,204 registered September 10, 2002; DELL – Reg. No. 1,616,571, registered October 9, 1990). The Panel finds both of Respondent’s <alienware-servisniy.center> and <dell-servisniy.center> domain names to be confusingly similar to Complainant’s ALIENWARE and DELL marks. Each incorporates the corresponding mark in its entirety and adds a hyphen and the generic term “servisniy”, which do not distinguish the domain name from the relevant mark, and the inconsequential “.center” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain names or names corresponding to the domain names in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain names, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <alienware-servisniy.center> and <dell-servisniy.center> domain names were both registered on November 25, 2021, many years after Complainant has shown that its DELL mark had become famous worldwide and its ALIENWARE mark had become very well-known. Each resolves to a website which prominently displays Complainant’s corresponding ALIENWARE or DELL mark and offers services purporting to be those of Complainant, while seeking personal and other information from Internet users.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <alienware-servisniy.center> and <dell-servisniy.center> domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain names.
Complainant has established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s ALIENWARE and DELL marks when Respondent registered the <alienware-servisniy.center> and <dell-servisniy.center> domain names and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites, by creating a likelihood of confusion with Complainant’s marks as to the source of Respondent’s websites and of the services promoted on those websites. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alienware-servisniy.center> and <dell-servisniy.center> domain names be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: February 8, 2022
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