Dell Inc. v. Rino Manangkalangi
Claim Number: FA1506001626784
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Rino Manangkalangi (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <tokoalienware.com>, registered with Network Solutions, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 30, 2015; the Forum received payment on June 30, 2015.
On June 30, 2015, Network Solutions, LLC confirmed by e-mail to the Forum that the <tokoalienware.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 July 1, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 21, 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@tokoalienware.com. Also on July 1, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On July 28, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 is a world leader in the sale of computers, computer accessories and computer-related products and services.
Complainant uses its ALIENWARE mark in the marketing of custom computer gaming hardware, including laptops, desktops and computer peripherals.
Complainant holds rights in the ALIENWARE mark though registration with the United States Patent and Trademark Office (“USPTO”) (Registry No. 2,616,204, registered September 10, 2002).
Respondent registered the <tokoalienware.com> domain name on or about March 29, 2015.
The domain name is confusingly similar to Complainant’s ALIENWARE mark.
Respondent has not been commonly known by the domain name or by Complainant’s ALIENWARE mark.
Respondent is not licensed or otherwise permitted by Complainant to use Complainant’s mark.
Respondent is not using the disputed domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
The domain name resolves to a website that attempts to deceive consumers into thinking that Respondent is Complainant in order to profit by gathering Internet users’ personal information at the “Contact Us” section of Respondent’s website.
Respondent has no rights to or legitimate interests in the domain name.
Respondent has attempted to attract Internet users to its website for commercial gain by creating a likelihood of confusion with Complainant’s ALIENWARE mark.
Respondent registered the disputed domain name with knowledge of Complainant and its ALIENWARE mark.
Respondent has engaged in bad faith registration and use of the domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark and service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. 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 proceeding on the basis of Complainant's undisputed representations pursuant to ¶¶ 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to ¶ 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) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP 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 has rights in the ALIENWARE trademark and service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with the USPTO. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a UDRP complainant’s rights in a mark under Policy ¶ 4(a)(i)).
This is true without regard to whether Complainant’s rights in its mark arise from its registration in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Indonesia). See Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (finding that it is irrelevant under Policy ¶ 4(a)(i) whether a UDRP complainant has registered its trademark in the country of a respondent’s residence).
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that the <tokoalienware.com> domain name is confusingly similar to Complainant’s ALIENWARE mark. The domain name incorporates the mark in full, merely inserting the generic term “toko,” which translates to “store” in Indonesian, and adding the gTLD “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See, for example, Body Shop Int’l PLC v. CPIC NET, D2000-1214 (WIPO Nov. 26, 2000) (finding the domain name <bodyshopdigital.com> confusingly similar to a UDRP complainant’s THE BODY SHOP trademark).
See also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that, under Policy ¶ 4(a)(i), the top level of a domain name such as “.net” or “.com” does not affect the domain name for purposes of determining whether it is identical or confusingly similar to the mark of another).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (finding that a UDRP complainant must make out a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under ¶ 4(a)(ii) before the burden shifts to a respondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Therefore, and because Respondent has failed to respond to the allegations of the Complaint filed in this proceeding, we are free to conclude that Respondent has no rights to or legitimate interests in the contested domain name. See BIC Deutschland GmbH & Co. KG v. Tweed, D2000-0418 (WIPO June 20, 2000), and Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000), both finding that, when a respondent fails to respond to a UDRP Complaint, a panel may draw the inference that that respondent does not have rights to or legitimate interests in a disputed domain name. Nonetheless, we will examine the record before us, in light of the considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant alleges, and Respondent does not deny,
that Respondent has not been commonly known by the <tokoalienware.com> domain name nor by Complainant’s ALIENWARE mark, and that Respondent is not licensed or otherwise permitted by Complainant to use Complainant’s ALIENWARE mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Rino Manangkalangi,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the meaning of Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding, under Policy ¶ 4(c)(ii), no rights to or legitimate interests in a contested domain name where a respondent was not a licensee of a UDRP complainant, and where that complainant’s rights in the domain name preceded that respondent’s domain name registration, and there was nothing in the record of the proceeding to indicate that that respondent was commonly known by the domain name there in question).
We next observe that Complainant asserts, without objection from Respondent, that Respondent is not using the <tokoalienware.com> domain name for a bona fide offering of goods or services or for a legitimate noncommercial or fair use, in that the domain name resolves to a website that attempts to deceive consumers into thinking that Respondent is Complainant in order to profit by gathering Internet users’ personal information at the “Contact Us” section of Respondent’s website. This employment of the domain name, commonly called “phishing,” is neither a bona fide offering of goods or services by which Respondent could claim rights to or legitimate interests in the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use by which it could lay claim to such rights or interests under Policy ¶ 4(c)(iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel there finding, under Policy ¶¶ 4(c)(i) and 4(c)(iii), that a respondent’s attempt to pass itself off as a UDRP complainant was not a bona fide offering of goods or services or a legitimate noncommercial or fair use on which that respondent might rely in claiming rights to or legitimate interests in a disputed domain name, where that respondent used the domain name to present users with a website that was nearly identical to that complainant’s website). See also 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).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the domain name <tokoalienware.com>, as alleged in the Complaint, is an effort to profit by creating a likelihood of confusion among Internet users as to the possibility of Complainant’s association with the domain name and its resolving website. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in the registration and use of the domain name. See Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002):
Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.
We are also convinced by the evidence that Respondent registered the disputed domain name with knowledge of Complainant and its rights in the ALIENWARE trademark and service mark. This too is proof of Respondent’s bad faith in the registration of the domain name. See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting a respondent's contention that it did not register a disputed domain name in bad faith where a panel found that that respondent had knowledge of a UDRP complainant's rights in the UNIVISION mark when registering the domain name).
Finally, under this head of the Policy, Respondent’s use of the disputed domain name to conduct a phishing expedition at the expense of unsuspecting Internet users is further evidence of its bad faith in the registration and use of the domain name. See HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding, under Policy ¶ 4(a)(iii), that a respondent registered and used a contested domain name in bad faith where it redirected Internet users to a website that imitated a UDRP complainant’s website and was used fraudulently to acquire personal information from that complainant’s potential associates).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <tokoalienware.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 5, 2015
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