Dell, Inc. v. Javier Lores Garmendia c/o Abako Networks S.L.
Claim Number: FA0910001290066
Complainant is Dell, Inc. (“Complainant”), represented by Steven
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <minidell.com>, registered with 1 & 1 Internet Ag.
The undersigned Daniel B. Banks, Jr., as panelist, 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.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 16, 2009; the National Arbitration Forum received a hard copy of the Complaint on October 21, 2009.
On October 20, 2009, 1 & 1 Internet Ag confirmed by e-mail to the National Arbitration Forum that the <minidell.com> domain name is registered with 1 & 1 Internet Ag and that the Respondent is the current registrant of the name. 1 & 1 Internet Ag has verified that Respondent is bound by the 1 & 1 Internet Ag registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 29, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of November 18, 2009 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 email@example.com by e-mail.
A deficient Response was received on October 19, 2009.
On December 1, 2009, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Daniel B. Banks, Jr., as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Complainant is the owner of the distinctive and well known DELL trademark and its corresponding logo. Complainant commenced using the mark in connection with the production, sale and distribution of personal computers, laptops, monitors, carrying cases, software and other accessories and supplies at least as early as 1987. Complainant’s marks are aggressively protected through registration and worldwide enforcement. Complainant owns several U. S. Federal Trademark Registrations for the mark.
The disputed domain name is confusingly similar to Complainant’s registered trademark Dell, Inc.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the name “Dell” nor does Respondent operate a business or other organization under this mark or name.
Respondent is not making a legitimate non-commercial or fair use of the domain name and is using it to confuse and misleadingly divert customers or the tarnish the Complainant’s marks.
Respondent registered the disputed domain name in bad faith. He is using the marks to attract internet searchers for commercial gain. And, Searchers will likely be confused into believing that there is a connection of source, sponsorship, affiliation or endorsement between Complainant and Respondent by Respondent’s use of the domain name minidell.com.
Respondent submitted the following response:
“I’m not interested in owing minidell.com domain. You may proceed to transfer the domain to DELL. I will eliminate the page immediately and my apologies to DELL”.
FINDINGS AND DISCUSSION
PRELIMINARY ISSUE #1: DEFICIENT RESPONSE
Respondent’s Response was submitted only in electronic format prior to the Response deadline. Thus, the National Arbitration Forum does not consider the Response to be in compliance with ICANN Rule 5. The Panel elects to accept and consider this Response. See Six Continents Hotels, Inc. v. Nowak, D2003-0022 (WIPO Mar. 4, 2003) (holding that the respondent’s failure to submit a hard copy of the response and its failure to include any evidence to support a finding in its favor placed the respondent in a de facto default posture, permitting the panel to draw all appropriate inferences stated in the complaint). But see J.W. Spear & Sons PLC v. Fun League Mgmt., FA 180628 (Nat. Arb. Forum Oct. 17, 2003) (finding that where the respondent submitted a timely response electronically, but failed to submit a hard copy of the response on time, “[t]he Panel is of the view that given the technical nature of the breach and the need to resolve the real dispute between the parties that this submission should be allowed and given due weight”).
PRELIMINARY ISSUE #2: CONSENT TO TRANSFER
Respondent consents to transfer <minidell.com> domain name to Complainant. However, after the initiation of this proceeding, the registrar, 1 & 1 Internet AG, placed a hold on Respondent’s account and therefore Respondent cannot transfer the disputed domain names while this proceeding is still pending. As a result, the Panel decides to forego the traditional UDRP analysis and order an immediate transfer of the <minidell.com> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
Respondent having consented to the transfer of the disputed domain name, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <minidell.com> domain name be TRANSFERRED from Respondent to Complainant.
Daniel B. Banks, Jr., Panelist
Dated: December 10, 2009
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