Dell, Inc. v. Javier Lores
Garmendia c/o Abako Networks S.L.
Claim Number: FA0910001290066
PARTIES
Complainant is Dell, Inc. (“Complainant”), represented by Steven
M. Levy,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <minidell.com>, registered with 1 & 1
Internet Ag.
PANEL
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.
PROCEDURAL HISTORY
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 postmaster@minidell.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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
A. 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.
B. Respondent
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.”).
DECISION
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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