Dell Inc. v. Vijayan Anbalagan
Claim Number: FA1510001640914
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Vijayan Anbalagan (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue is <delllaptopservicecenterschennai.com> and <delllaptopservicecenter.com>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 5, 2015; the Forum received payment on October 5, 2015.
On October 5, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <delllaptopservicecenterschennai.com> and <delllaptopservicecenter.com> 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 October 6, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 26, 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@delllaptopservicecenterschennai.com, postmaster@delllaptopservicecenter.com. Also on October 6, 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 October 30, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant owns the DELL mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,860,272, registered Oct. 25, 1994).
Complainant uses the DELL mark in connection with its computers, computer parts, computer security software and services, and other computer-related products and services.
The <delllaptopservicecenterschennai.com> and <delllaptopservicecenter.com> domain names are confusingly similar to the DELL mark. The <delllaptopservicecenterschennai.com> domain name incorporates the mark in full, inserts the generic words “laptop service centers,” the geographic descriptor “Chennai,” and adds the generic top-level domain (“gTLD”) “.com” to the domain name. The <delllaptopservicecenter.com> domain name incorporates the mark in full, inserts the generic words “laptop service centers, and adds the gTLD “.com.”
Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names or by Complainant’s DELL mark. Respondent is not licensed or permitted by Complainant to use Complainant’s mark. Further, Respondent is not using the disputed domain names for a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Respondent’s <delllaptopservicecenterschennai.com> domain name resolves to a website that attempts to pass itself off as Complainant’s support website. Complainant uses these passing off tactics in an attempt to deceive consumers and gather Internet users’ personal information. Further, Respondent has failed to make an active use of the <delllaptopservicecenter.com> domain name.
Respondent has engaged in bad faith registration and use of the <delllaptopservicecenterschennai.com> and <delllaptopservicecenter.com> domain name pursuant to Policy ¶ 4(a)(iii). First, Respondent is a serial cybersquatter with a pattern of bad faith registration. Further, Respondent registered the disputed domain names with knowledge of the DELL business and its rights in the mark. Additionally, Respondent uses the <delllaptopservicecenterschennai.com> to engage in passing off efforts, where Respondent attempts to deceive consumers. Finally, Respondent uses the <delllaptopservicecenterschennai.com> domain name to gather Internet users’ personal information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the DELL mark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in its relevant trademarks.
Respondent uses the at-issue domain names to pose as Complainant and further a phishing scheme aimed at tricking Internet users into divulging their personal information to Respondent.
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 at-issue domain names are each confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of USPTO trademark registrations for the DELL trademark demonstrates its rights in such mark for the purposes of Policy ¶4(a)(i). Complainant’s rights exist notwithstanding that Respondent may operate outside the jurisdiction of the trademark’s registrar. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also, 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; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
The <delllaptopservicecenterschennai.com> domain name incorporates the DELL mark in full, inserts the generic words “laptop service centers,” the geographic descriptor “Chennai,” and adds the gTLD “.com” to complete the domain name. The <delllaptopservicecenter.com> domain name incorporates the mark in full, inserts the generic words “laptop service centers, and adds the gTLD “.com.” Notwithstanding the resulting textual differences between the domain names and Complainant’s mark, each domain name is nevertheless confusingly similar to Complainant’s DELL trademark. See Disney Enters. Inc. v. McSherry, FA 154589 (Nat. Arb. Forum June 17, 2003) (finding the <disneyvacationvillas.com> domain name to be confusingly similar to Complainant’s DISNEY mark because it incorporated Complainant’s entire famous mark and merely added two terms to it). Prior panels have also held that the addition of a geographic descriptor fails to differentiate the domain name from a registered mark. See Ticketmaster Corp. v. Kumar, FA 744436 (Nat. Arb. Forum Aug. 17, 2006) (finding that the <indiaticketmaster.com> domain name was confusingly similar to the complainant’s TICKETMASTER mark); see also, Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of each of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain names.
WHOIS information for the at-issue domain names lists “Vijayan Anbalagan” as the domain names’ registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the either the <delllaptopservicecenterschennai.com> or the <delllaptopservicecenter.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by either at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s <delllaptopservicecenterschennai.com> domain name addresses a website that attempts to pass itself off as Complainant’s support website. The website displays a version of Complainant’s logo at the top of each page and copies the look and feel of Complainant’s official website. Using the domain name in a manner designed to allow Respondent to pass itself off as Complainant is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not 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) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website). Respondent deceives Internet users so that it may gather personal information under the guise of being Complainant by directing website visitors to a telephone number and online form to “phish” for personal information that may be exploited by Respondent. Respondent’s fraudulent behavior further indicates that Respondent lacks both rights and interests with regard to the <delllaptopservicecenterschennai.com> domain name. While Respondent’s has failed to make active use of the <delllaptopservicecenter.com> domain name, the co-registration of this confusingly similar domain name along the <delllaptopservicecenterschennai.com> shows that both domain names were registered for the common purpose of enabling a scheme to use Complainant’s trademark to abet Respondent fraud on unsuspecting Internet users. Indeed, the fact that the <delllaptopservicecenter.com> is inactive also suggests that Respondent lacks rights and interest in such domain name. See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent failed to submit a response to the complaint and had made no use of the domain name in question).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of each at-issue domain name.
Respondent registered and used each domain name in bad faith. As discussed below, Policy ¶4(b) specific bad faith circumstances as well as other circumstance are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy as to each at-issue domain name.
First, Respondent is a serial cybersquatter with a pattern of bad faith registration. Complainant has been involved in a prior UDRP decision against Respondent in which Complainant prevailed. See Dell Inc. v. Vijayan Anbalagan, FA 1531184 (Nat. Arb. Forum, Nov. 22, 2013). Considered along with the Respondent’s registration of the two at-issue domain names in the instant dispute, a pattern of bad faith registration is suggested under Policy ¶ 4(b)(ii). See Liberty Mut. Ins. Co. v. Bin g Glu, FA 1036129 (Nat. Arb. Forum Sept. 2, 2007) (holding prior UDRP proceedings were sufficient evidence of a pattern of bad faith registrations); see also Harcourt, Inc. v. Fadness, FA 95247 (Nat. Arb. Forum Sept. 8, 2000) (finding that one instance of registration of several infringing domain names satisfies the burden imposed by the Policy ¶ 4(b)(ii)).
Second, Respondent registered the <delllaptopservicecenterschennai.com> and <delllaptopservicecenter.com> domain names knowing that Complainant had trademark rights in the DELL mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of the confusingly similar domain names in a scheme to impersonate Complainant. In such scheme Respondent copied Complainant’s logo, the look and feel of Complainant’s official website, displayed pictures of Complainant’s products, referred visitors to Complainant’s official telephone number, and offered services for Complainant’s products. Of course Respondent’s knew of Complainant and its DELL trademark prior to registering the at-issue domain names. Given the forgoing, it is clear that Respondent intentionally registered the at-issue domain names precisely to improperly exploit their trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <delllaptopservicecenterschennai.com> and <delllaptopservicecenter.com> domain names in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Third, as mentioned above Respondent uses the <delllaptopservicecenterschennai.com> to pass itself off as Complainant to deceive consumers; evidence of bad faith registration and use in itself pursuant to Policy ¶ 4(a)(iii). See Capital One Fin. Corp. & Capital One Bank v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (“The <capitalonebank.biz> domain name is confusingly similar to Complainant’s mark, it is being used to redirect Internet users to a website that imitates Complainant’s credit application website, and it is being used to fraudulently [sic] acquire personal information from Complainant’s clients. Respondent’s use of the domain name supports findings of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Finally and again as mentioned above, Respondent uses the <delllaptopservicecenterschennai.com> domain name to fraudulently gather Internet users’ personal information. Respondent’s phishing for personal information is itself evidence of bad faith registration and use. See Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <delllaptopservicecenterschennai.com> and <delllaptopservicecenter.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 8, 2015
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