Dell, Inc. v. N/A and Carl Lindberg
Claim Number: FA0910001290040
Complainant is Dell,
Inc. (“Complainant”), represented by Steven
M. Levy,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <wwdell.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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 18, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant has used the DELL mark since at least as early as 1987 in connection with its computer hardware and accessories business.
On
Respondent has no license from or other agreement with Complainant authorizing Respondent to use the DELL mark
Respondent registered the <wwdell.com> domain
name on
The disputed domain name redirects Internet users to Complainant’s official website resolving from the <dell.com> domain name.
Complainant
operates an affiliate program which compensates other domain name holders who
direct Internet users to Complainant’s official website.
Respondent’s <wwdell.com> domain name is confusingly similar to Complainant’s DELL mark.
Respondent is using the disputed domain name to redirect Internet users to Complainant’s website, and is thus attempting illicitly to profit from Complainant’s affiliate program.
Respondent does not have any rights to or legitimate interests in the <wwdell.com> domain name.
Respondent registered and uses the <wwdell.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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 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 a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has established rights in the DELL mark under
Policy ¶ 4(a)(i) via its registration with the USPTO, and
registration of the mark in the country of Respondent’s residence is
unnecessary to establish such rights. See Trip Network Inc. v.
Alviera, FA 914943 (Nat. Arb. Forum
The <wwdell.com> domain name contains
Complainant’s DELL mark in its entirety, preceded only by the letters “ww” and
followed by the generic top-level domain (gTLD) “.com.” It is well established that the addition of a
gTLD is irrelevant to a Policy ¶ 4(a)(i)
analysis. See Gardline
Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum
The
addition of a top-level domain is irrelevant when establishing whether or not a
mark is identical or confusingly similar, because top-level domains are a
required element of every domain name.
The <wwdell.com> domain name
mimics Complainant’s <dell.com> domain name, merely adding “ww” at the
beginning. The addition of “ww”
to the front of the disputed domain name takes advantage of Internet users’ typographical
errors in forming the typical “www” prefix while typing a domain name,
resulting in confusing similarity. See Neiman Marcus Group, Inc. v. S1A, FA 128683 (Nat. Arb.
Forum
The Panel therefore finds that <wwdell.com> domain name is confusingly similar to the DELL mark pursuant to Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), Complainant must first establish a prima facie
case that Respondent has no rights or legitimate interests in the <wwdell.com>
domain name. The burden then shifts to Respondent to show
that it does indeed have rights to or legitimate interests in the disputed
domain name. See Domtar, Inc. v. Theriault.,
FA 1089426 (Nat. Arb. Forum
It
is well established that, once a complainant has made out a prima facie case in
support of its allegations, the burden shifts to respondent to show that it
does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.
Complainant’s allegations are sufficient to establish a prima facie case that Respondent has no
rights to or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii). Because
no response was submitted in this case, we may presume that Respondent has no
rights to or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg.,
FA 118277 (Nat. Arb. Forum
Respondent’s
failure to respond means that Respondent has not presented any circumstances
that would promote its rights or legitimate interests in the subject domain
name under Policy ¶ 4(a)(ii).
We will nonetheless examine the record in consideration of the factors listed in Policy ¶ 4(c) to determine if there is in it any basis for concluding that Respondent has any such rights or interests.
We begin by noting that there is no evidence in the record
suggesting that Respondent is commonly known by the <wwdell.com>
domain name. Moreover, Complainant asserts, and Respondent does not deny, that
Respondent has no license from or other agreement with Complainant authorizing
Respondent to use the DELL mark, while the pertinent WHOIS information
identifies the registrant only as “N/A and Carl Lindberg.” Thus we conclude that Respondent is not
commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee
Yi, FA 139720 (Nat. Arb. Forum
We also observe that Complainant asserts, without
contradiction from Respondent, that Respondent’s <wwdell.com>
domain name redirects Internet users to Complainant’s official website, which
resolves from Complainant’s <dell.com> domain name, and that Complainant’s
affiliate program compensates other domain name holders who direct Internet
users to Complainant’s website.
Complainant further contends, again without contradiction from
Respondent, that Respondent is using the contested domain name to redirect
Internet users to Complainant’s website and is thus attempting illicitly to
profit from Complainant’s affiliate program.
This use of the contested
domain is not a bona fide offering of
goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) respectively.
See Deluxe Corp. v.
Additionally, typo-squatting occurs where a respondent purposefully
includes common typographical errors in a domain name to divert Internet users
who make those errors. The <wwdell.com>
domain name takes advantage of Internet users who omit the usual final “w” and
the period after the “www” prefix at the beginning of a domain name. Respondent is thus engaged in typo-squatting,
which is further evidence that Respondent does not have rights to or legitimate
interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Black & Decker
Corp. v. Khan, FA 137223 (Nat. Arb. Forum
The Panel thus finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
Complainant
contends that Respondent is attempting to profit by using a domain name that is
confusingly similar to Complainant’s DELL mark, and that the disputed
domain name resolves to Complainant’s website.
Respondent does not dispute any of these allegations. Because Internet users could easily be confused
as to the possibility of Complainant’s control of or affiliation with the
disputed domain name, we conclude that
Respondent is attempting to profit from this likely confusion by leading
Internet users to Complainant’s legitimate website and collecting referral fees
in the process. This is evidence of bad
faith registration and use of the contested domain under Policy ¶ 4(b)(iv). See Deluxe Corp. v.
the Panel finds the
respondent is appropriating the complainant’s mark in a confusingly similar
domain name for commercial gain, which is evidence of bad faith registration
and use pursuant to Policy ¶4(b)(iv).
In addition, Respondent’s typo-squatting, as
above-described, is evidence that Respondent registered and is using the <wwdell.com>
domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Nat’l Ass’n of Prof’l Baseball League, Inc.
v. Zuccarini, D2002-1011 (WIPO
Typosquatting
… is the intentional misspelling of words with [the] intent to intercept and
siphon off traffic from its intended destination, by preying on Internauts who
make common typing errors. Typosquatting
is inherently parasitic and of itself evidence of bad faith.
See also Sports Auth. Mich., Inc. v. Skander,
FA 135598 (Nat. Arb. Forum
For these reasons, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is Ordered that the <wwdell.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 7, 2009
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