Dell Inc. v. Dabhand Solutions
Claim Number: FA1603001664093
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, IV, Texas, United States. Respondent is Dabhand Solutions (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delltechsupports.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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 4, 2016; the Forum received payment on March 4, 2016.
On March 4, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <delltechsupports.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 March 7, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 2016 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@delltechsupports.com. Also on March 7, 2016, 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 April 1, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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 made the following contentions.
Complainant uses the DELL mark in connection with its business in computers, computer accessories, and other computer-related products and services. Complainant has registered the DELL mark with the likes of the United States Patent and Trademark Office (“USPTO”), (e.g., Reg. No. 1,860,272, registered October 25, 1994), which demonstrates rights in the mark. Respondent’s <delltechsupports.com> domain name is confusingly similar to the DELL mark as it incorporates the mark in its entirety while adding the descriptive word “techsupports” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <delltechsupports.com> domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use through the <delltechsupports.com> domain name. Rather, the domain name resolves to a website purporting to be Complainant’s with hyperlinks to both Complainant’s actual website and Respondent’s private website. Moreover, Respondent uses the domain in an attempt to phish for consumers’ confidential information through its “Remote Support” link, displayed on its resolving webpage; this link directs consumers to a tool entitled “Establish Support Connection,” which requests the visitor’s name and “Support Key,” and presumably enables Respondent to establish a remote connection to a visitor’s device once this information is provided, or install malware onto users’ devices.
Respondent is using the <delltechsupports.com> domain name in bad faith. Respondent’s use of the website serves as a disruption of Complainants legitimate business purposes. Respondent has also attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website. Respondent is also distributing malicious software. Further, Respondent uses the domain to phish for consumer’s private information. Finally, Respondent had actual and constructive notice of the DELL mark and Complaint’s rights therein because of the similarity of Respondent’s <delltechsupports.com> domain name and Complainant’s actual website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a prominent United States company engaged in the business of providing computers, computer accessories, and other computer-related products and services.
2. 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 rights in the mark.
3. Respondent registered the <delltechsupports.com> domain name on January 5, 2016.
4. The disputed domain name resolves to a website purporting to be Complainant’s with hyperlinks to both Complainant’s actual website and Respondent’s private website and Respondent has used the domain name for phishing and to install malware onto users’ devices.
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(f), 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 first issue that arises is whether Complainant has a trademark or service mark on which it can rely. Complainant uses the DELL mark in connection with its business in computers, computer accessories, and other computer-related products and services. Complainant claims to have registered the DELL mark with the USPTO (e.g., Reg. No. 1,860,272, registered October 25, 1994), arguing such registrations demonstrate rights in a mark, even where Respondent operates in a different country. Panels have found, under such circumstances, that a complainant’s valid USPTO registration is sufficient in establishing rights in a mark per Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark Office (‘USPTO’)”). The Panel therefore finds that Complainant has established its rights in the DELL mark.
The second issue that arises is whether the disputed <delltechsupports.com> domain name is identical or confusingly similar to Complainant’s DELL mark. Complainant argues that Respondent’s <delltechsupports.com> domain name is confusingly similar to the DELL mark as it incorporates the mark in its entirety while adding the descriptive term “techsupports” and the “.com” gTLD. Panels have found such alterations to a mark are insufficient in overcoming a finding of confusing similarity under Policy ¶ 4(a)(i). See Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark) . Therefore, the Panel finds that Respondent’s <delltechsupports.com> domain name is confusingly similar to the DELL mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that 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.”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s DELL mark and to use it in its domain name and has added the generic expression “techsupports” which does not detract from the confusing similarity that is clearly present but suggests that the domain name is referring to technical support for Complainant’s products;
(b) Respondent registered the disputed domain name on January 5, 2016;
(c) The domain name resolves to a website purporting to be Complainant’s with hyperlinks to both Complainant’s actual website and Respondent’s private website and Respondent has used the domain name for phishing and to install malware onto users’ devices;
(d) Respondent engaged in the aforementioned activities without the permission or authority of Complainant;
(e) Complainant also argues that Respondent has no rights or legitimate interests in the <delltechsupports.com> domain name because Respondent is not commonly known by the disputed domain name. Respondent is not licensed, or otherwise permitted to use Complainant’s DELL mark, or any other marks owned by Complainant. According to the publicly available WHOIS record, “Debhand Solutions” is the registrant of record for the disputed domain name. The Panel also notes that Respondent has failed to submit a Response in this proceeding. Therefore, in light of the available evidence the Panel finds that there is no basis to find Respondent commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name);
(f) Further, Complainant argues that Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use through the <delltechsupports.com> domain name. Rather, Complainant contends that the domain name resolves to a website, very similar to Complainant’s website, that contains hyperlinks both to Complainant’s website, and to other competing websites. See Compl., at Attached Ex. F. Such links to Complainant’s website include: “Products”, “Solutions & Services”, and “Deals”. Id. Complainant argues that the “Support” link resolves to a tool entitled “Establish Support Connection”. Id. Complainant asserts that Respondent presumably establishes a remote connection to a visitor’s device once this information is provided, and once this information is gathered Respondent presumably commercially benefits by abusing the personal information gathered, or by installing malicious software on the devices The Panel notes Attached Exhibit G comprising copies of E-mails sent from Respondent to consumers. In addition, Complainant provides evidence that customers have confused the two sites, and submits that Respondent purports to be Complainant through its use of the domain name and resolving website. Panels have found such use by a respondent to evince neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) & (iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Dream Horse Classifieds v. Mosley, FA 381256 (Nat. Arb. Forum Feb. 8, 2005) (finding the respondent’s attempt to pass itself off as the complainant by implementing a color scheme identical to the complainant’s was evidence that respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii)); 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).”); see also Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Nat. Arb. Forum June 23, 2009) (finding that a respondent’s use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses “failed to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues that Respondent’s use of the <delltechsupports.com> domain name serves as a disruption of Complainant’s legitimate business practices pursuant to Policy ¶ 4(b)(iii) because of the use of a fraudulent scheme involving email messages sent to Internet users in an attempt to take advantage of such confusion. See Compl., at Attached Ex. G (emails from mailto:services@delltechsupports.com). Past Panels have agreed, under such circumstances, such use constitutes bad faith disruption under Policy ¶ 4(b)(iii). See Chevron Intellectual Property LLC v. Richard Bailey/Jacobs, FA 1588430 (Nat. Arb. Forum Dec. 9, 2014) (“The Panel accepts that Respondent’s conduct in impersonating Complainant in furtherance of fraud encompasses the requisite element of competition envisioned by Policy ¶ 4(b)(iii), and finds this evidence of Respondent’s bad faith use and registration”). Therefore, the Panel finds that Respondent’s <delltechsupports.com> domain name falls within the purview of Policy ¶ 4(b)(iii).
Secondly, Complainant submits that Respondent purports to be Complainant through its use of the domain and resolving website; put differently, Complainant argues that Respondent’s resolving website copies Complainant’s official website nearly verbatim The Panel’s notes Complainant’s Exhibit F, showing Respondent’s <delltechsupports.com> domain name. The Panel agrees with Complainant and holds that, under such circumstances, Respondent’s actions constitute bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness).
Thirdly, Complainant argues that Respondent had actual and constructive knowledge of Complainant's rights in the DELL mark. Complainant argues that Respondent's use of the disputed domain name to host a website which nearly identically reproduces Complainant’s official website, copying Complainants logos and pictures etc., indicates that Respondent had actual knowledge of Complainant's mark and rights. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, the Panel finds that Respondent had actual knowledge of Complainant's mark and rights and therefore determines that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also 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 "actual knowledge of Complainant's mark when registering the disputed domain name").
Thirdly, Complainant argues that Respondent uses the domain name, in part, to phish for consumers’ private, confidential information. Specifically, Complainant submits that Respondent contacts its customers using the alias “Dell Support.” When consumers contact Respondent through the domain, they are directed to input their names and “Dell Support Key” numbers. Once this is completed, Complainant alleges that Respondent creates a remote connection to the consumers’ devices and uses that access to phish for private, confidential information. Engaging in phishing behavior has been held to violate Policy ¶ 4(a)(iii). 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). As such, the Panel finds that Respondent has violated Policy ¶ 4(a)(iii) through its registration and use of the disputed domain name.
Fourthly, Complainant also contends that Respondent has used the site to distribute malicious software. Past panels have found that use of a domain name in connection with the distribution of malware is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See WordPress Foundation v. dunziangwang / duanziangwang, FA 1613675 (Nat. Arb. Forum Jun 1, 2015) (stating that the Respondent’s use of a domain name to induce users to download malware “clearly indicate[s] bad faith registration and use”). Therefore, the Panel agrees that Respondent used the site to distribute malicious software and finds that this is adequate evidence of bad faith under Policy ¶ 4(a)(iii).
Fifthly, in addition and having regard to the totality of the evidence, the Panel finds that, in view of Respondent’s registration of the disputed <delltechsupports.com> domain name using the DELL mark and in view of the conduct that Respondent engaged in when using the domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <delltechsupports.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC,
Panelist
Dated: April 3, 2016
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