Dell Inc. v. laiquanjiang / jiang laiquan
Claim Number: FA1505001621616
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is laiquanjiang / jiang laiquan (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alienware-dell.com>, registered with Xin Net Technology Corporation.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 28, 2015; the Forum received payment on May 28, 2015. The Complaint was received in both Chinese and English.
On May 28, 2015, Xin Net Technology Corporation confirmed by e-mail to the Forum that the <alienware-dell.com> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 June 4, 2015, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of June 24, 2015 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@alienware-dell.com. Also on June 4, 2015, the Chinese language 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.
On July 1, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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 alleges as follows: Complainant claims to have rights in the DELL mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,860,272, registered on October 25, 1994). Complainant also has rights in the ALIENWARE mark through registration with the USPTO (e.g., Reg. No. 2,616,204, registered on September 10, 2002). Respondent’s <alienware-dell.com> domain name is confusingly similar to Complainant’s marks because the disputed domain name is a combination of the DELL and ALIENWARE marks, appended by a hyphen and the generic top-level domain (“gTLD”) “.com.”
Respondent is not commonly known by the disputed domain name as the WHOIS information lists “laiquanjiang” as Registrant. Respondent has not submitted any further evidence to indicate being commonly known by the disputed domain name.
Respondent has failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because it uses the resolving website to copy the look and feel, fonts, images, and logos of Complainant’s official website, thereby passing itself off as Complainant.
Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because it uses the resolving website to engage in a phishing scheme to gather Internet user information via a pop-up window. See Compl., at Attached Ex. H. Respondent may then abuse the information gathered from Internet users to commercially profit by selling it to third parties.
Respondent uses the resolving website to capitalize on the confusion of Internet users as to Respondent’s identity in order to profit commercially as per Policy ¶ 4(b)(iv). Respondent used the disputed domain name in order to pass itself off as Complainant. Respondent registered the <alienware-dell.com> domain name with actual and/or constructive knowledge in Complainant’s rights in the DELL and ALIENWARE marks. Respondent uses the disputed domain name in order to engage in phishing, which constitutes bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <alienware-dell.com> domain name was created on April 19, 2015.
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 uses the DELL mark in conjunction with its development and sale of computers and computer parts. Complainant uses the ALIENWARE mark in conjunction with a specific brand of computer that Complainant manufactures and sells. Complainant alleges it has rights in the DELL mark through its registration with the USPTO (e.g., Reg. No. 1,860,272, registered on October 25, 1994). See Compl., at Attached Ex. C (USPTO registrations for the DELL mark). Complainant also alleges it has rights in the ALIENWARE mark through its registration with the USPTO (e.g., Reg. No. 2,616,204, registered on September 10, 2002). See Compl., at Attached Ex. F (USPTO registrations for the ALIENWARE mark). Additionally, Complainant has provided documentation of registration of the DELL and ALIENWARE marks in China in Exhibits D and G, respectively. Registration with the USPTO and/or China’s State Administration for Industry and Commerce (“SAIC”) suffices to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Digi-Key Corp. v. Bei jing ju zhong cheng dian zi ji shu you xian gong si, FA 1213758 (Nat. Arb. Forum Oct. 1, 2008) (“The Panel finds these registrations [with the USPTO and SAIC] sufficiently establish Complainant’s rights in its DIGI-KEY mark pursuant to Policy ¶ 4(a)(i).”). Further, while Complainant and Respondent operate in different countries, there exists a body of relevant UDRP-related precedent which disregards such geographic dissimilarity in favor of finding Policy ¶ 4(a)(i) rights for a complainant which is able to establish registration of a mark or marks with a relevant governmental authority. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Accordingly, the Panel finds that Complainant has rights in the DELL and ALIENWARE marks under Policy ¶ 4(a)(i).
Complainant alleges that Respondent’s <alienware-dell.com> domain name is confusingly similar to Complainant’s DELL and ALIENWARE marks because it is a combination of the marks, appended only by a hyphen and the gTLD “.com.” Past panels have found that the addition of gTLDs and hyphens are irrelevant to Policy ¶ 4(a)(i) analysis. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy). When a mark is combined with another mark in the creation of a domain name, the resulting domain name is confusingly similar to those marks. See Nintendo of Am. Inc. v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (finding confusing similarity where respondent combined the complainant’s POKEMON and PIKACHU marks to form the <pokemonpikachu.com> domain name).
Therefore, the Panel finds that Respondent’s <alienware-dell.com> domain name is confusingly similar to Complainant’s DELL and ALIENWARE marks pursuant to Policy ¶ 4(a)(i).
Complainant alleges that Respondent is not commonly known as the disputed domain name. The WHOIS information lists “laiquanjiang” as Registrant. Respondent has failed to provide further evidence to indicate being commonly known by the domain name. Such a lack of evidence is sufficient to show that a respondent is not commonly known by a domain name under Policy ¶ 4(c)(ii). 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).
Accordingly, the Panel finds that Respondent is not commonly known by the <alienware-dell.com> domain name under Policy ¶ 4(c)(ii).
Next, Complainant urges that Respondent fails to use the resolving website to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent seems to use the resolving website to pass itself off as Complainant by incorporating fonts, images, and logos of Complainant’s official website. Compare Compl., at Attached Ex. H (resolving page to Respondent’s <alienware-dell.com> domain name), with Compl., at Attached Ex. E (Complainant’s ALIENWARE web offerings). The use of a disputed domain to pass off as a complainant shows a lack of bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”).
As the Complainant’s assertions are unrebutted and a reasonable interpretation of the resolving web sites, the Panel finds Complainant’s evidence sufficient to show Respondent attempts to pass itself off as Complainant; therefore, the Panel finds Respondent fails to provide bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Further, Complainant alleges that Respondent fails to use the domain name to offer a bona fide offering of goods or services or a legitimate noncommercial or fair use because it uses the resolving website to engage in phishing by attempting to trick Internet users into giving away personal information. Complainant points out that Respondent has a pop-up on the resolving website inviting Internet users to reveal personal information. See Compl., at Attached Ex. H (resolving page to Respondent’s <alienware-dell.com> domain name, with what appears to be pop-up fields where Internet users can enter information). Phishing shows a lack of bona fide offering of goods or services or legitimate and noncommercial fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Nat. Arb. Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Again, as the Respondent has failed to rebut these claims, the Panel finds Complainant’s evidence sufficient to show Respondent engaged in phishing. As such, the Panel finds that Respondent fails to use the <alienware-dell.com> domain to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). As such, the Respondent lacks any rights or legitimate interests in or to the disputed domain name.
Complainant alleges that Respondent uses its <alienware-dell.com> domain name to financially gain by using the resolving site to confuse Internet users about the identity of Respondent. Complainant has provided Exhibit H, showing the resolving website, and Exhibit E, showing Complainant’s own website, in order to illustrate the ways in which Respondent attempts to confuse Internet users about Respondent’s identity. Complainant urges that Exhibit H shows Respondent is purporting to offer visitors repair and maintenance services for their ALIENWARE branded products. The evidence provided by Complainant adequately demonstrates Respondent’s attempt to attract, for commercial gain, Internet users to its website by creating confusion as to the source, sponsorship, affiliation, or endorsement of its website, pursuant to the language of Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Nat. Arb. Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
Complainant contends that Respondent uses the resolving website to pass itself off as Complainant. Complainant argues that Respondent uses the resolving website to impersonate Complainant by copying the color scheme of Complainant’s website and displaying Complainant’s marks. Compare Compl., at Attached Ex. H (resolving page to Respondent’s <alienware-dell.com> domain name), with Compl., at Attached Ex. E (Complainant’s ALIENWARE web offerings). Such use to constitutes bad faith under Policy ¶ 4(a)(iii).
Complainant alleges that Respondent registered the disputed domain name with actual and/or constructive knowledge of Complainant’s rights in the DELL and ALIENWARE marks. Complainant argues that because of Respondent’s attempt to pass itself off as Complainant, as described above, it would be impossible for Respondent to not know of Complainant’s rights in the DELL and ALIENWARE marks at the time of registration. The Panel disregards Complainant's arguments concerning constructive knowledge as panels have held that constructive knowledge alone is not enough evidence of bad faith. See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Nat. Arb. Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."). When respondents have actual knowledge of a complainant’s rights in a mark, the registration of a confusingly similar domain name is done in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent had actual knowledge of Complainant’s rights in the DELL and ALIENWARE marks at the time of registration; therefore, the Panel finds that Respondent registered the <alienware-dell.com> domain in bad faith under Policy ¶ 4(a)(iii).
Lastly, Complainant argues that Respondent uses the resolving website to engage in a phishing scheme to acquire Internet users’ personal information. Respondent seemingly uses a pop-up on its resolving website, which invites Internet users to divulge personal information on the belief that they are giving this information to Complainant in order to receive services. Past panels have found phishing to constitute bad faith under Policy ¶ 4(a)(iii). See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (determining that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name).
As these claims are not rebutted in the record, the Panel finds that Respondent uses the <alienware-dell.com> domain to engage in a phishing scheme; therefore, the Panel finds that Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <alienware-dell.com> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: July 7, 2015
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