Dell Inc. v. dengxiaobin
Claim Number: FA2205001997785
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Texas, USA. Respondent is dengxiaobin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dell-laptop.com> and <dellnext.com>, (‘the Domain Names’) registered with Dynadot4 LLC; Dynadot17 LLC.
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 May 24, 2022; the Forum received payment on May 24, 2022.
On May 24, 2022; May 26, 2022, Dynadot4 LLC; Dynadot17 LLC confirmed by e-mail to the Forum that the <dell-laptop.com> and <dellnext.com> Domain Names are registered with Dynadot4 LLC; Dynadot17 LLC and that Respondent is the current registrant of the names. Dynadot4 LLC; Dynadot17 LLC has verified that Respondent is bound by the Dynadot4 LLC; Dynadot17 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 June 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 21, 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@dell-laptop.com, postmaster@dellnext.com. Also on June 1, 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 June 29, 2022 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 Names be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the famous mark DELL registered, inter alia, in the USA for computers and related goods and services with first use recorded as 1987. It operates a web site at www.dell.com.
The Domain Names registered in 2022 are confusingly similar to the Complainant’s mark adding only the generic words ‘laptop’ and ‘next’ and/or a hyphen and the gTLD “.com” which do not prevent said confusing similarity.
The Respondent does not have rights or a legitimate interests in the Domain Names, is not commonly known by the Domain Names and is not authorized by the Complainant.
The Domain Names resolve to adult content. This is not a bona fide offering of goods or services or a non commercial legitimate or fair use. It is registration and use in bad faith causing confusion on the Internet by using and taking advantage of the Complainant’s intellectual property for commercial gain.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the famous mark DELL registered, inter alia, in the USA for computers and related goods and services with first use recorded as 1987. It operates a web site at www.dell.com.
The Domain Names registered in 2022 have been pointed to pornography.
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 Domain Names consist of, inter alia, the Complainant's DELL mark (which is registered, inter alia in the USA for computer related goods or services and has been used since 1987), the generic term ‘laptop’ or ‘next’ and/or a hyphen and the gTLD “.com”.
Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic terms ‘laptop’ or ‘next’ to the Complainant's mark does not prevent confusing similarity between the Domain Names and the Complainant's trade mark pursuant to the Policy. Nor does the addition of a hyphen. See Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4(a)(i).”).
The gTLD “.com” does not serve to distinguish the Domain Names from the DELL mark, which is the distinctive component of the Domain Names. 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 holds that the Domain Names are confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorised the Respondent to use its mark. There is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Names. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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 Names is commercial and so cannot be legitimate non commercial fair use.
The Domain Names have been used for a commercial site offering material of a pornographic nature.
The use of a domain name containing a third party famous trade mark to resolve to material of an adult sexual nature is not a bona fide use. See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA 1732665 (Forum July 7, 2017).
The Respondent has not answered this Complaint or provided any explanation.
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Names and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Use of the Domain Names which contain the Complainant’s famous trade mark in relation to a web page hosting pornographic material is evidence of bad faith registration and use under Policy 4(b)(iii). See Molson Canada 2005 v. JEAN LUCAS/DOMCHARME GROUP, FA 1412001596702 (Forum Feb. 10, 2015).
As such, the Panelist believes that the Complainant has made out its case that the Domain Names were registered and used in bad faith 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 <dell-laptop.com> and <dellnext.com> Domain Names be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 29, 2022
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