Dell Inc. v. N/A c/o Mrityunjay Kumar
Claim Number: FA1310001527549
Complainant is Dell Inc. (“Complainant”), represented by Tyson D. Smith of Pirkey Barber PLLC, Texas, USA. Respondent is N/A c/o Mrityunjay Kumar (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellcomtech.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 31, 2013; the National Arbitration Forum received payment on October 31, 2013.
On November 1, 2013, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the National Arbitration Forum that the <dellcomtech.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 November 1, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 21, 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@dellcomtech.com. Also on November 1, 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 November 25, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed David E. Sorkin 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
Complainant is the world’s largest direct seller of computer systems. Complainant sells its products and services in over 180 countries; its DELL mark has become famous in the United States and many other countries.
Respondent is the registrant of the disputed domain name <dellcomtech.com>, which includes Complainant’s mark and the generic terms “com” and “tech.” Complainant contends that the disputed domain name is identical or confusingly similar to its mark.
The disputed domain name is used in connection with a website for “DellComTech.” The website states that “DellComTech” is “a global leader in consulting, technology and outsourcing solutions” with “$5.4bn in annual revenues” and “more than 15,000 employees worldwide,” and is “ranked in the top tier of Forbes 200 most innovative companies. Complainant alleges that “DellComTech” in fact does not exist, and that the statements on the website are merely an attempt to associate the site with Complainant. Complainant suggests that Respondent may be using the website to solicit personal information from Internet users for its own commercial benefit. Complainant states that Respondent is not commonly known by the domain name, and that it has not authorized Respondent to use its marks. Complainant contends on these grounds that Respondent lacks rights or legitimate interests in the domain name, and that Respondent has registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used 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."
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.”).
The disputed domain name combines Complainant’s famous trademark with two generic terms associated with Complainant’s industry and the top-level domain suffix “.com”. These additions do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Osram AG v. Osramtech, D2012-1918 (WIPO Dec. 4, 2012) (finding <osramtech.com> confusingly similar to OSRAM); Dell Inc. v. Lenee Dahl, FA 1433746 (Nat. Arb. Forum Apr. 18, 2012) (finding <delltechcomputers.com> confusingly similar to DELL). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name is confusingly similar to Complainant’s mark, as discussed supra, and the website to which it resolves contains what appears to be false information regarding a company that does not even exist. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that “by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent’s] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent’s] web site or location or of a product or service on [Respondent’s] web site or location.”
While Respondent’s motivation for its registration and use of the domain name is not entirely clear, Respondent’s activities appear to fall within paragraph 4(b)(iv), and there is no indication that Respondent has contemplated any other use for the domain name. The Panel therefore finds that Complainant has sustained its burden of proving that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellcomtech.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 26, 2013
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