Dell, Inc. v. www.HugeDomains.com a/k/a HugeDomains.com c/o This Domain Is For Sale
Claim Number: FA0711001106074
Complainant is Dell, Inc. (“Complainant”), represented by Seth
A. Rose, of Loeb & Loeb LLP,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <computerdell.com>, <dellbay.com>, <dellcable.com>, <dellcheck.com>, <dellclearance.com>, <dellculture.com>, <dellmobility.com>, <dellpoint.com>, <dellreview.com>, <delltrack.com>, <dellvalley.com>, <microdell.com>, <nextdell.com>, <onlydell.com>, and <servicedell.com >, registered with Enom, Inc., and <dellrio.com> and <delltera.com>, registered with Godaddy.com, 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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
On November 13, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 3, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@computerdell.com, postmaster@dellbay.com, postmaster@dellcable.com, postmaster@dellcheck.com, postmaster@dellclearance.com, postmaster@dellculture.com, postmaster@dellmobility.com, postmaster@dellpoint.com, postmaster@dellreview.com, postmaster@dellrio.com, postmaster@delltera.com, postmaster@delltrack.com, postmaster@dellvalley.com, postmaster@microdell.com, postmaster@nextdell.com, postmaster@onlydell.com, and postmaster@servicedell.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <computerdell.com>, <dellbay.com>, <dellcable.com>, <dellcheck.com>, <dellclearance.com>, <dellculture.com>, <dellmobility.com>, <dellpoint.com>, <dellreview.com>, <dellrio.com>, <delltera.com>, <delltrack.com>, <dellvalley.com>, <microdell.com>, <nextdell.com>, <onlydell.com>, and <servicedell.com > domain names are confusingly similar to Complainant’s DELL mark.
2. Respondent does not have any rights or legitimate interests in the <computerdell.com>, <dellbay.com>, <dellcable.com>, <dellcheck.com>, <dellclearance.com>, <dellculture.com>, <dellmobility.com>, <dellpoint.com>, <dellreview.com>, <dellrio.com>, <delltera.com>, <delltrack.com>, <dellvalley.com>, <microdell.com>, <nextdell.com>, <onlydell.com>, and <servicedell.com > domain names.
3. Respondent registered and used the <computerdell.com>, <dellbay.com>, <dellcable.com>, <dellcheck.com>, <dellclearance.com>, <dellculture.com>, <dellmobility.com>, <dellpoint.com>, <dellreview.com>, <dellrio.com>, <delltera.com>, <delltrack.com>, <dellvalley.com>, <microdell.com>, <nextdell.com>, <onlydell.com>, and <servicedell.com > domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dell Inc., has sold computer systems and
related products and services under the DELL mark since 1987. Complainant is the world’s largest direct
seller of computer systems. Complainant
generates nearly half of its revenue from sales over the Internet, and has
registered thousands of domain names that include the DELL mark, including the <dell.com>,
<dellcomputer.com>, <dellmobile.org>, <dell-mobile.com>,
<dellcomputerreview.com>, <dellreviews.biz>,
<dellreviews.net>, <dellreviews.org>, <dellmicro.com> domain
names, among others. Complainant
registered the DELL mark with the United States Patent and Trademark Office (“USPTO”)
on
Respondent registered the <computerdell.com>
domain name
on November 30, 2006, the <dellbay.com>
domain name on April 20, 2007, the <dellcable.com> domain name
on October 1, 2006, the <dellcheck.com> domain name on September
18, 2006, the <dellclearance.com> domain name on September 24,
2006, the <dellculture.com> domain name on July 23, 2007, the <dellmobility.com>
domain name on May 12, 2007, the <dellpoint.com> domain name on
August 24, 2006, the <dellreview.com> domain name on October 9,
2006, the <dellrio.com> domain name on June 14, 2005, the <delltera.com>
domain name on December 12, 2005, the <delltrack.com> domain
name on October 1, 2006, the <dellvalley.com> domain name on April
10, 2007, the <microdell.com> domain name on August 3, 2006, the <nextdell.com>
domain name on September 11, 2006, the <onlydell.com> domain
name on September 28, 2006, and the <servicedell.com > domain name
on August 24, 2006. Respondent is
currently using the disputed domain names to redirect
consumer to domain-specific webpages within Respondent’s
<hugedomains.com> commercial website, wherein each disputed domain name
was offered for sale.
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 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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant has registered the DELL mark with the USPTO, and
therefore, the Panel finds that it has established rights to the mark pursuant
to Policy ¶ 4(a)(i).
See Innomed Techs., Inc. v. DRP Servs.,
FA 221171 (Nat. Arb. Forum
The Panel finds that the <computerdell.com>, <dellbay.com>,
<dellcable.com>, <dellcheck.com>, <dellclearance.com>,
<dellculture.com>, <dellmobility.com>, <dellpoint.com>,
<dellreview.com>, <dellrio.com>, <delltera.com>,
<delltrack.com>, <dellvalley.com>, <microdell.com>,
<nextdell.com>, <onlydell.com>, and <servicedell.com
> domain names are confusingly similar to Complainant’s mark
under Policy ¶ 4(a)(i). Because the disputed domain names combine the
DELL mark with one of the generic terms “computer,” “bay,” “cable,” “check,”
“clearance,” “culture,” “mobility,” “point,” “review,” “rio,” “tera,” “track,”
“valley,” “micro,” “next,” “only” and “service,” some of which directly
describe Complainant’s products, the addition of the generic terms does not
distinguish the disputed domain names from the DELL mark. In addition, all domain names all required to
have a top-level domain, therefore, Respondent’s addition of the generic
top-level domain (“gTLD”) “.com” to Complainant’s mark does not sufficiently
distinguish the disputed domain names from the DELL mark. See Arthur Guinness Son & Co. (
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant contends that Respondent has neither rights nor
legitimate interests in the disputed domain names. Complainant must first present a prima facie case establishing that
Respondent lacks all rights and legitimate interests in the disputed domain
names. Once Complainant has met the
burden and made a prima facie case
supporting the assertion that Respondent lacks rights and legitimate interests,
the burden shifts to Respondent to show that it does have rights or legitimate
interests in the disputed domain names.
The Panel finds that Complainant has demonstrated that Respondent lacks
rights and legitimate interests, and thus made a prima facie case pursuant to Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO
The Panel presumes that Respondent lacks all rights and legitimate interests in the disputed domain names because Respondent failed to answer the Complaint. See Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the respondents’ failure to respond can be construed as an admission that they have no legitimate interest in the domain names). However, the Panel will examine all evidence in the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant contends that Respondent has never been
authorized to use the DELL mark, and that Respondent is not and has never been
commonly known by the disputed domain names.
Moreover, the WHOIS information does not indicate that Respondent is
commonly known by the disputed domain names.
Therefore, the Panel finds that Respondent is not commonly known by the
disputed domain names under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Respondent is currently using the disputed domain names to redirect consumer to domain-specific webpages for commercial gain. The Panel finds that Respondent’s use is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
On
the websites that resolve from the disputed domain names, Respondent offers the
disputed domain names for sale, and has listed its WHOIS contact information as
“This Domain Is For Sale.” The Panel
finds Respondent’s attempts to sell the disputed domain names as evidence that
Respondent lacks rights and legitimate interests in the <computerdell.com>,
<dellbay.com>, <dellcable.com>, <dellcheck.com>,
<dellclearance.com>, <dellculture.com>, <dellmobility.com>,
<dellpoint.com>, <dellreview.com>, <dellrio.com>,
<delltera.com>, <delltrack.com>, <dellvalley.com>,
<microdell.com>, <nextdell.com>, <onlydell.com>,
and <servicedell.com > domain names pursuant to Policy ¶
4(a)(ii). See Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent has intentionally attempted to attract Internet
users to the websites that resolve from the disputed domain names for
commercial gain, benefiting from the likelihood of confusion between
Complainant’s DELL mark and the disputed domain names. The Panel finds that the disputed domain
names are capable of creating confusion as to Complainant’s source,
sponsorship, affiliation, or endorsement of the websites that resolve from the
disputed domain names pursuant to Policy ¶ 4(b)(iv). See Bank of Am. Corp. v.
Respondent’s
registration and use in bad faith under Policy ¶ 4(b)(i)
is evidenced by Respondent’s offer to sell the disputed domain names. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the
disputed domain name registration for sale establishes that the domain name was
registered in bad faith under Policy ¶ 4(b)(i).”); see also Am. Online,
Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum
The Panel finds that
Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <computerdell.com>, <dellbay.com>, <dellcable.com>, <dellcheck.com>, <dellclearance.com>, <dellculture.com>, <dellmobility.com>, <dellpoint.com>, <dellreview.com>, <dellrio.com>, <delltera.com>, <delltrack.com>, <dellvalley.com>, <microdell.com>, <nextdell.com>, <onlydell.com>, and <servicedell.com > domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: December 14, 2007
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