Dell Inc. v. Intentio Technologies Pvt.Ltd
Claim Number: FA1301001479195
Complainant is Dell Inc. (“Complainant”), represented by Wendy C. Larson, Texas, USA. Respondent is Intentio Technologies Pvt.Ltd (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delltechnoservices.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 8, 2013; the National Arbitration Forum received payment on January 8, 2013.
On January 8, 2013, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <delltechnoservices.com> domain name is registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the name. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. 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 January 9, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 29, 2013 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@delltechnoservices.com. Also on January 9, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 1, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
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" 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 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
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Dell, Inc., is a world leader in computers, computer parts, and other computer-related parts and services, including technical support.
Complainant owns many trademark registrations for the DELL mark, including registrations with both the United States Patent & Trademark Office (“USPTO”) and India’s Trademarks Registry (“ITR”). See, e.g., USPTO Reg. No. 1,860,272 registered on Oct. 25, 1994; ITR Reg. No. 1,190,375 registered on May 9, 2005.
Respondent, Intentio Technologies Pvt.Ltd, registered the domain name on June 15, 2012. Respondent is using the <delltechnoservices.com> domain name to offer tech support services under the DELL mark. The domain name resolves to a website featuring a logo that plays off of Complainant’s DELL mark and logos. Respondent is attempting to pass itself off as Complainant or as an affiliate of Complainant. Respondent also requests Internet users to provide information in a submission form.
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(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.”).
Complainant’s registration of the DELL mark in both the United States as well as India, Respondent’s listed location, establishes Complainant’s rights under Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark Office (‘USPTO’)”).
Respondent’s <delltechnoservices.com> domain name features the DELL mark and tacks on the generic words “techno” and “services.” Both the terms “techno” and “services” fail to distinguish the disputed domain name from the mark because these terms can be viewed as descriptive of the products and services Complainant offers under its DELL mark. See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business). Respondent also adds the generic top-level domain (“gTLD”) “.com” to the domain name. The gTLD is irrelevant in its analysis. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore the Panel finds that the <delltechnoservices.com> domain name is confusingly similar to the DELL mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name).
Complainant argues that Respondent is not commonly known by the domain name, and notes that the WHOIS information indicates that the registrant is “Intentio Technologies Pvt. Ltd.” Complainant further notes that the WHOIS information lists a contact under the name of “Arnold Fernandes.” The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii) because neither the WHOIS information nor any other evidence in the record connects Respondent with the <delltechnoservices.com> domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant next alleges that Respondent is using the <delltechnoservices.com> domain name in purporting to offer tech support services. Complainant contends that the domain name resolves to a website featuring a logo that plays off of Complainant’s DELL mark and logos. The domain name resolves to a website that solicits computer services plans, promotes various computer services, and asks for the Internet user’s e–mail. The Panel finds that Respondent has failed to make a bona fide offering, or a legitimate noncommercial or fair use, in using the disputed domain name to offer services in competition with Complainant. See Alcon, Inc. v. ARanked, FA 1306493 (Nat. Arb. Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Complainant also argues that Respondent is attempting to pass itself off as Complainant or as an affiliate of Complainant, and Respondent has been subject to consumer complaints. Two of the consumer complaints identify Respondent as trying to convince consumers that it is an official provider of services for Complainant. A respondent cannot make a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name when the respondent is merely passing itself off as a complainant. See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself off as the complainant was not 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) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website).
Complainant also argues that Respondent is engaging in a phishing scheme by requesting Internet users to provide information in a submission form. The domain name’s resolving website asks Internet users for their information, as well as solicits Internet users to purchase a service plan. The Panel finds that Respondent’s conduct in phishing for personal and financial information is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name. See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (concluding that using a domain name to redirect Internet users to a website that imitated the complainant’s credit application website and attempted to fraudulently acquire personal information from the complainant’s clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use). The Panel finds that Respondent has provided neither a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the <delltechnoservices.com> domain name.
Complainant alleges that Respondent seeks to obtain the personal information of Internet users by confusing the user into associating the <delltechnoservices.com> domain name with Complainant and its DELL mark. Complainant argues that Respondent is attracting commercial gains through this bad faith confusion of Internet users. The domain name resolves to a website that solicits Internet users to provide their email addresses as well as whatever financial information would be required to sign up for the alleged service plans. Previous panels have held that a respondent has registered a domain name in bad faith when its domain name is confusingly similar to a registered mark, and the domain name is being used to promote services that are offered in competition to those offered under the complainant’s mark. See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark). The Panel finds that Respondent’s registration and use of the <delltechnoservices.com> domain name constitutes a Policy ¶ 4(b)(iv) act of bad faith.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <delltechnoservices.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 15, 2013
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