Dell Inc. v. ANKIT PURI / VOCAW Technical Services
Claim Number: FA1312001534337
Complainant is Dell Inc. (“Complainant”), represented by Tyson D. Smith of Pirkey Barber PLLC, Texas, USA. Respondent is ANKIT PURI / VOCAW Technical Services (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dellitsupport.co>, <dellitsupport.net>, <delltechsupport.org>, <dellthatsupport.net>, and <dellthissupport.net>, registered with GODADDY.COM, LLC.
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 December 12, 2013; the National Arbitration Forum received payment on December 12, 2013.
On December 12, 2013, and December 13, 2013, GODADDY.COM, LLC confirmed by email to the National Arbitration Forum that the <dellitsupport.co>, <dellitsupport.net>, <delltechsupport.org>, <dellthatsupport.net>, and <dellthissupport.net> domain names are registered with GODADDY.COM, LLC and that Respondent is the current registrant of the names. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, LLC 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 December 13, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2014 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@dellitsupport.co, postmaster@dellitsupport.net, postmaster@delltechsupport.org, postmaster@dellthatsupport.net, postmaster@dellthissupport.net. Also on December 13, 2013, the Written Notice of the Complaint, notifying Respondent of the email 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 January 9, 2014, 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.
Also on January 9, 2014, the National Arbitration Forum received an email message from Respondent stating as follows:
“I have not been receiving any mails for this case please allow me some time to check with my attorney and respond as we are in process of forming NGO to aid people (retired, disabled, students etc.) who cannot afford costly support by Dell and other service providers. That is why these domains are just bought and there is no hosting, parking or anything like that and also not being used for any commercial activity. Any help to make this happen will be appreciated.”
The Forum promptly acknowledged Respondent’s message:
Unfortunately the time to respond has passed. If you choose to file a late response, prior to the panel decision being received we will forward it to the panel. Note, it will be left to the sole discretion of the panel as to whether or not it will be considered.
Please let me know if you need any specific documents forwarded to you regarding this case. Note, we have been using the same email for all correspondence to you.
As of January 24, 2014, the Forum had not received any further communications from Respondent.
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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a leading seller of computer systems. Complainant’s DELL mark is the subject of several U.S. trademark registrations. Complainant claims that the DELL mark has become famous in the United States and many other countries, and that it recently was ranked the number one PC maker in India, with a 15% market share.
Complainant contends that the disputed domain names, <dellitsupport.co>, <dellitsupport.net>, <delltechsupport.org>, <dellthatsupport.net>, and <dellthissupport.net>, are identical or confusingly similar to Complainant’s DELL mark, incorporating the mark in its entirety and appending phrases such as “tech support” that are likely to be associated with Complainant. Complainant further contends that Respondent lacks rights or legitimate interests in the disputed domain names. In support thereof, Complainant asserts that Respondent has not used, nor made demonstrable preparations to use, the disputed domain names in connection with a bona fide offering of goods or services, and to the contrary has used the domain names to display links to third-party sites unaffiliated with Complainant. Complainant also asserts that Respondent is not commonly known by the disputed domain names; that Complainant has not licensed or otherwise permitted Respondent to use its DELL mark; and that Respondent is not making a legitimate noncommercial or fair use of the domain names.
Finally, Complainant contends that Respondent registered and is using the disputed domain names in bad faith. Complainant alleges that Respondent is profiting by using the domain names to display links likely to be associated with Complainant that in fact divert Internet users to third-party websites, creating a likelihood of confusion with Complainant’s mark. Complainant also alleges that Respondent was aware of Complainant’s mark when he registered the disputed domain names, noting that the domain names were registered only two days after Complainant filed a separate complaint under the Policy against Respondent regarding a different domain name, <dellitsupport.com>. See Dell Inc. v. Ankit Puri, FA 1520922 (Nat. Arb. Forum Oct. 30, 2013).
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and have 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 names combine Complainant’s famous trademark with generic terms and terms describing services offered by Complainant, along with various top-level domains. These additions do not diminish the similarity between the domain name and Complainant’s mark. See, e.g., Dell Inc. v. Ankit Puri, supra (finding <dellitsupport.com> confusing similar to DELL); British Telecommunications, plc v. Compulab Ltd., D2007-1803 (WIPO Feb. 13, 2008) (finding <btsupport.com> and <btsupport.net> confusingly similar to BT); AOL Time Warner, Inc. v. apex domains, FA 198026 (Nat. Arb. Forum Nov. 3, 2003) (finding <aoltechsupport.com> confusingly similar to AOL). The Panel finds that the disputed domain names are 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 names, 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).
Complainant has made its prime facie case, and Respondent has failed to come forward with any evidence of rights or legitimate interests. The Panel finds that Complainant has met its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and have 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.”
Respondent’s use of the domain names to display pay-per-click links, including links to Complainant’s competitors, is indicative of bad faith use under paragraph 4(b)(iv). The fact that the disputed domain names were registered only two days after the filing of a separate complaint against Respondent, as described supra, provides further evidence of Respondent’s bad faith. The Panel finds that the disputed domain names were registered and have been used in bad faith.
Having considered the elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellitsupport.co>, <dellitsupport.net>, <delltechsupport.org>, <dellthatsupport.net>, and <dellthissupport.net> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 24, 2014
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