Dell Inc. v. Ed S Golka
Claim Number: FA0711001112608
Complainant is Dell Inc. (“Complainant”), represented by Seth
A. Rose, of Loeb & Loeb LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <delldollars.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 November 28, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 18, 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@delldollars.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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <delldollars.com> domain name is confusingly similar to Complainant’s DELL mark.
2. Respondent does not have any rights or legitimate interests in the <delldollars.com> domain name.
3. Respondent registered and used the <delldollars.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dell Inc., has marketed and sold computers for over 20 years. Complainant sells its product worldwide, with revenues over $55 billion. Complainant is very active on the Internet, registering many domain names incorporating its DELL mark. Complainant registered the DELL mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,616,571 issued October 9, 1990). Complainant also holds trademark registrations for many variations of the DELL mark.
Respondent registered the <delldollars.com>
domain name on
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 registered the DELL mark with the USPTO, and
therefore, has established rights to the mark pursuant to Policy ¶
4(a)(i). See Innomed
Techs., Inc. v. DRP Servs., FA 221171
(Nat. Arb. Forum
Complainant contends that the <delldollars.com> domain name is confusingly similar to its
DELL mark. Respondent’s addition of the
generic term “dollars” to the registered
mark is insufficient to distinguish the disputed domain name from the
registered mark. Also, because all domain names are required to
have a top-level domain, Respondent’s use of the generic top-level domain
(“gTLD”) “.com” does not distinguish the disputed domain name from
Complainant’s registered mark.
Therefore, the Panel finds that the <delldollars.com>
domain name is confusingly similar to Complainant’s DELL mark pursuant to
Policy ¶ 4(a)(i). See Sony Kabushiki Kaisha v.
Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding that “[n]either
the addition of an ordinary descriptive word . . . nor the
suffix ‘.com’ detract from the overall impression of the dominant part of the name
in each case, namely the trademark SONY” and thus Policy ¶ 4(a)(i) is
satisfied); see also
Am. Online Inc. v. Neticq.com Ltd., D2000-1606 (WIPO Feb. 12, 2001)
(finding that the addition of the generic word “Net” to the complainant’s ICQ
mark, makes the <neticq.com> domain name confusingly similar to the
complainant’s mark); see also Rollerblade, Inc. v. McCrady,
D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name
such as “.net” or “.com” does not affect the domain name for the purpose of
determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent has neither rights nor
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Complainant has the initial burden of proof
to show that Respondent does not have rights or legitimate interests in the
disputed domain name. When Complainant
has made a prima facie showing, the
burden shifts to Respondent to show that it does have rights or legitimate
interests in the <delldollars.com>
domain name. The Panel finds that
Complainant has met the initial burden showing that Respondent lacks rights and
legitimate interests, and therefore has made a prima facie case under Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO
Because Respondent failed to answer the Complaint, the Panel presumes that Respondent lacks all rights and legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). Nevertheless, the Panel will examine all evidence in the record to determine if Respondent does have rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts 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 name.
Further, the WHOIS information shows the Respondent is known as “Ed S.
Golka,” and does not indicate that Respondent is commonly known by the disputed
domain name. Thus, the Panel finds that
Respondent is not commonly known by the <delldollars.com>
domain name pursuant to Policy ¶ 4(c)(ii).
See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
Respondent previously used the <delldollars.com> domain name to resolve to a website with third-party links in direct
competition with Complainant. The
Panel finds that such 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 DLJ Long Term Inv. Corp. v.
BargainDomainNames.com, FA 104580 (Nat.
Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in
connection with a bona fide offering of goods and services because Respondent
is using the domain name to divert Internet users to <visual.com>, where
services that compete with Complainant are advertised.”); see also Ameritrade Holdings Corp. v. Polanski, FA
102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of
the disputed domain name to redirect Internet users to a financial services
website, which competed with the complainant, was not a bona fide
offering of goods or services).
The Panel also finds
that Respondent is currently not using the disputed domain name, as the <delldollars.com> domain name does
not resolve to an active website. There
is no evidence that Respondent is preparing to use the disputed domain name in
connection with a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial
or fair use pursuant to Policy ¶ 4(c)(iii).
Therefore, the Panel finds the Respondent lacks rights and legitimate
interests under Policy ¶ 4(a)(ii). See Melbourne IT Ltd. v. Stafford,
D2000-1167 (WIPO Oct. 16, 2000) (finding no rights or legitimate interests in
the domain name where there is no proof that the respondent made preparations
to use the domain name or one like it in connection with a bona fide
offering of goods and services before notice of the domain name dispute, the
domain name did not resolve to a website, and the respondent is not commonly
known by the domain name); see also TMP Int’l, Inc. v. Baker Enters., FA 204112 (Nat. Arb. Forum Dec. 6, 2003) (“[T]he Panel
concludes that Respondent's passive holding of the domain name does not
establish rights or legitimate interests pursuant to Policy ¶ 4(a)(ii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel presumes that Respondent used the <delldollars.com> domain name for
financial gain by earning click-through fees from the third-party links. The Panel finds that the similarity between
the disputed domain name and the DELL mark were likely
to create confusion as to Complainant’s source, sponsorship, affiliation, or
endorsement of the website that resolved from the disputed domain name. Therefore, Respondent’s registration and use
of the disputed domain name constituted bad faith under Policy ¶ 4(b)(iv). See AltaVista
Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under
Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that
offered links to third-party websites that offered services similar to the
complainant’s services and merely took advantage of Internet user mistakes); see also
Currently the disputed domain name is not being actively used. Respondent’s non-active use of the disputed domain name implies bad faith registration and use under Policy ¶ 4(a)(iii). See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that non-active use of a domain name permits an inference of registration and use in bad faith); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith).
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 <delldollars.com> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: January 7, 2008
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