Dell Inc. v. Ranjeet / NCRSYSTEMSOLUTION / Ranjeet Singh / NCR System Solution
Claim Number: FA1511001646056
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, United States. Respondent is Ranjeet / NCRSYSTEMSOLUTION / Ranjeet Singh / NCR System Solution (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <delllaptoprepairindelhi.com>, <delllaptoprepairinghaziabad.com>, <delllaptoprepairinfaridabad.com>, <delllaptoprepairinnoida.com>, <delllaptoprepairingurgaon.com>, <delllaptoprepairindwarka.com>, <delllaptopservicecentre.com>, registered with Melbourne IT Ltd and GoDaddy.com, LLC.
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.
John J. Upchurch as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 9, 2015; the Forum received payment on November 9, 2015.
On November 9, 2015, GoDaddy.com, LLC confirmed by e-mail to the FORUM that the <delllaptopservicecentre.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 November 10, 2015 Melbourne IT Ltd confirmed by e-mail to the Forum that the <delllaptoprepairindelhi.com>, <delllaptoprepairinghaziabad.com>, <delllaptoprepairinfaridabad.com>, <delllaptoprepairinnoida.com>, <delllaptoprepairingurgaon.com>, and <delllaptoprepairindwarka.com> domain names are registered with Melbourne IT Ltd and that Respondent is the current registrant of the names. Melbourne IT Ltd has verified that Respondent is bound by the Melbourne IT Ltd 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 12, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 2, 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@delllaptoprepairindelhi.com, postmaster@delllaptoprepairinghaziabad.com, postmaster@delllaptoprepairinfaridabad.com, postmaster@delllaptoprepairinnoida.com, postmaster@delllaptoprepairingurgaon.com, postmaster@delllaptoprepairindwarka.com, and postmaster@delllaptopservicecentre.com. Also on November 12, 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 December 7, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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 names be transferred from Respondent to Complainant.
A. Complainant’s Contentions
1. Complainant is a world leader in computers, computer accessories, and other computer-related products and services. Complainant sells its products and services in over 180 countries. Complainant has registered the DELL mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,860,272, registered October 25, 1994), which demonstrates its rights in its mark. The Panel is directed to Attached Exhibit D for copies of Complainant’s USPTO registrations. The disputed domain names are confusingly similar to Complainant’s mark as they incorporate the famous DELL mark in its entirety and merely add the generic terms “centre,” “in,” “laptop,” “repair,” and/or “service,” the geographic terms “Delhi,” “Dwarka,” “Faridabad,” “Ghaziabad,” and the generic top-level domain (“gTLD”) “.com.”
2. Respondent has no rights or legitimate interests in the disputed domain names. First, Respondent is not commonly known by the disputed domain names or any variant of Complainant’s mark. Second, Respondent is not licensed or authorized to use Complainant’s mark. Finally, Respondent did not make a bona fide offering of goods or services through the disputed domain names or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain names to pass itself off as Complainant through the use of Complainant’s logo and pictures of Complainant’s products on its websites. Respondent’s disputed domain names also promote Respondent’s services for products of Complainant’s competitors, including Acer, HP, HCL, and IBM. The Panel is directed to Attached Exhibit G for printouts of Respondent’s websites. Finally, after creating an association with Complainant, Respondent attempts to gather Internet users’ personal information through contact forms asking for visitors’ “Name,” “Email,” “Number,” and computer “Model Number.”
3. Respondent has registered and is using the disputed domain name in bad faith. First, Respondent uses the disputed domain names to disrupt and compete with Complainant’s business. Second, Respondent uses the confusingly similar domain names to intentionally attract Internet users to its own websites for commercial gain. Third, Respondent is engaged in a phishing scheme, whereby Respondent attempts to gather Internet users’ personal information after falsely creating an association with Complainant. Again, the Panel is directed to Attached Exhibit G for representative pages from Respondent’s websites. Finally, Respondent registered the disputed domain names with actual knowledge of Complainant’s mark.
B. Respondent’s Contentions
1. Respondent did not submit a Response in this proceeding.
1. Respondent’s <delllaptoprepairindelhi.com>, <delllaptoprepairinghaziabad.com>, <delllaptoprepairinfaridabad.com>, <delllaptoprepairinnoida.com>, <delllaptoprepairingurgaon.com>, <delllaptoprepairindwarka.com>, <delllaptopservicecentre.com> domain names are confusingly similar to Complainant’s DELL mark.
2. Respondent does not have any rights or legitimate interests in the <delllaptoprepairindelhi.com>, <delllaptoprepairinghaziabad.com>, <delllaptoprepairinfaridabad.com>, <delllaptoprepairinnoida.com>, <delllaptoprepairingurgaon.com>, <delllaptoprepairindwarka.com>, <delllaptopservicecentre.com> domain names.
3. Respondent registered and used the <delllaptoprepairindelhi.com>, <delllaptoprepairinghaziabad.com>, <delllaptoprepairinfaridabad.com>, <delllaptoprepairinnoida.com>, <delllaptoprepairingurgaon.com>, <delllaptoprepairindwarka.com>, <delllaptopservicecentre.com> domain names 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.”).
Complainant is a world leader in computers, computer accessories, and other computer-related products and services. Complainant sells its products and services in over 180 countries. Complainant has registered the DELL mark with the USPTO (e.g., Reg. No. 1,860,272, registered October 25, 1994). Complainant asserts that its USPTO registration demonstrates its rights in its mark. The Panel finds that trademark registrations with the USPTO suffice to demonstrate a complainant’s rights in its mark for the purposes of Policy ¶ 4(a)(i), with respect to the geographic disparity of the parties. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”). Accordingly, the Panel finds that Complainant has demonstrated its rights in its mark pursuant to Policy ¶ 4(a)(i).
Complainant contends that the disputed domain names are confusingly similar to Complainant’s mark as they incorporate the famous DELL mark in its entirety and merely add the generic terms “centre,” “in,” “laptop,” “repair,” and “service,” the geographic terms “Delhi,” “Dwarka,” “Faridabad,” “Ghaziabad,” and the gTLD “.com.” Previous panels have held that the addition of a generic or geographic term to a complainant’s mark does not serve to adequately distinguish a disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also 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). Previous panels have also found that the affixation of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”). As such, the Panel finds that Respondent’s disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); 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 argues that Respondent has no rights or legitimate interests in the disputed domain name. Complainant contends that Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Further, Complainant argues that Respondent has no license or authorization to use Complainant’s mark. The Panel notes that the WHOIS information merely lists “Ranjeet / NCRSYSTEMSOLUTION / Ranjeet Singh / NCR System Solution” as registrant and that Respondent has failed to provide any evidence for the Panel’s consideration. As such, the Panel finds no basis in the available record to find Respondent commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Complainant contends that Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Complainant argues that Respondent uses the disputed domain names to pass itself off as Complainant through the use of Complainant’s logo and pictures of Complainant’s products on its websites. Moreover, Complainant asserts that Respondent’s disputed domain names promote Respondent’s services for products of Complainant’s competitors, including Acer, HP, HCL, and IBM. Finally, Complainant contends that Respondent attempts to gather Internet users’ personal information through contact forms asking for visitors’ “Name,” “Email,” “Number,” and computer “Model Number,” thereby engaging in a phishing scheme. Past panels have found that a respondent’s attempt to pass itself off as the complainant does not constitute 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). 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).”). Past panels have also held that a respondent’s use of a disputed domain name to sell products and services that compete directly with the complainant’s business is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Alcon, Inc. v. ARanked, FA 1306493 (Nat. Arb. Forum Mar. 18, 2010) (“The Panel finds that capitalizing on the well-known marks of Complainant by attracting internet users to its disputed domain names where Respondent sells competing products of Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Finally, past panels have concluded that a respondent’s attempt to phish for users’ personal information is neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). For these reasons, the Panel finds that Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Complainant argues that Respondent uses the disputed domain names to disrupt and compete with Complainant’s business. In so arguing, Complainant alleges that Respondent’s disputed domain names display Complainant’s logos and pictures of its products, copy the color scheme of Complainant’s official websites, and offer services for Complainant’s products. Previous panels have found evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii) where a respondent uses a disputed domain name to divert a complainant’s customers to the respondent’s competing business. See Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel agency and thus operates in the same business as the Complainant. The parties can therefore be considered as competitors. The Panel thus finds that the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which constitutes evidence of registration and use in bad faith under Policy 4(b)(iii).”). Accordingly, the Panel finds that Respondent registered and is using the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iii).
Complainant asserts that Respondent uses the confusingly similar domain names to intentionally attract Internet users to its own websites for commercial gain. Past panels have held that a respondent’s use of a disputed domain name to host a website that offers similar products and services offered by a complainant constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See Velva, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <arizonashuttle.net> domain name, which contained the complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to the respondent’s website offering competing travel services violated Policy ¶ 4(b)(iv)). As such, the Panel finds that Respondent engaged in bad faith registration and use under Policy ¶ 4(b)(iv).
Complainant contends that Respondent is engaged in a phishing scheme, whereby Respondent attempts to gather Internet users’ personal information after falsely creating an association with Complainant. Previous panels have held that a respondent demonstrated bad faith registration and use per Policy ¶ 4(a)(iii) because it attempted to acquire the personal information of Internet users through a confusingly similar domain name. 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). Therefore, the Panel finds that Respondent engaged in bad faith registration and use as proscribed by Policy ¶ 4(a)(iii).
Finally, Complainant argues that Respondent registered the disputed domain names with actual knowledge of Complainant’s mark. In so arguing, Complainant asserts that Respondent’s use on its websites of Complainant’s logos, pictures, and the color scheme of its websites make it clear that Respondent registered the disputed domain names with actual knowledge of the DELL mark. Previous panels have found evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii) where it is clear that the respondent was well-aware of the complainant’s mark at the time the disputed domain name was registered. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Accordingly, the Panel finds that Respondent registered the disputed domain names with actual knowledge of Complainant’s mark 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 <delllaptoprepairindelhi.com>, <delllaptoprepairinghaziabad.com>, <delllaptoprepairinfaridabad.com>, <delllaptoprepairinnoida.com>, <delllaptoprepairingurgaon.com>, <delllaptoprepairindwarka.com>, <delllaptopservicecentre.com> domain names be TRANSFERRED from Respondent to Complainant.
John J. Upchurch, Panelist
Dated: December 18, 2015
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