Dell Inc. v. Ionel Adrian Nicolae
Claim Number: FA1607001683104
Complainant is Dell Inc. (“Complainant”), represented by Elizabeth M. Stafki, Texas, USA. Respondent is Ionel Adrian Nicolae (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alienware-nvidia.xyz>, registered with NameCheap, Inc.
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 Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 8, 2016; the Forum received payment on July 8, 2016.
On July 11, 2016, NameCheap, Inc. confirmed by e-mail to the Forum that the <alienware-nvidia.xyz> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 12, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 1, 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 firstname.lastname@example.org. Also on July 12, 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 August 9, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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.
Complainant is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has used television, radio, magazines, newspapers, and the internet as marketing media. Complainant sells its products and services in over 180 countries. Alienware Corporation is a wholly owned subsidiary of Complainant specializing in custom computer gaming hardware, including laptops, desktops, and computer peripherals. Complainant has used the mark ALIENWARE for many years in connection with computers and other computer-related products and services, such as warranty, repair, and maintenance services. Complainant owns a number of U.S. trademark registrations for its ALIENWARE mark. (See, e.g., U.S. Reg. No. 2,616,204, registered Sept. 10, 2002). Respondent’s <alienware-nvidia.xyz> is confusingly similar as it incorporates the ALIENWARE mark entirely and adds the term “Nvidia,” which is descriptive as it is the name of a technology company that designs graphics processing units for Complainant and others, and adds the generic top-level domain (“gTLD”) “.xyz.”
Respondent has no rights or legitimate interests. Respondent is not commonly known by the disputed domain, is not an authorized retailer/promoter of Complainant’s products or services, and has not been licensed or otherwise permitted to utilize Complainant’s marks in connection with domain registrations. Respondent passes itself off as Complainant through the disputed domain name to profit through conducting a survey and urging participants to share the website and “like” it on Facebook®.
Respondent registered and used the <alienware-nvidia.xyz> domain in bad faith. Respondent has engaged in Policy ¶¶ 4(b)(iii) and (iv) bad faith by passing itself off as Complainant to deceive Internet users into thinking the resolving site is operated by Complainant, and presumably profiting therefrom. Last, Respondent clearly had knowledge of Complainant and its rights in the ALIENWARE mark.
Respondent failed to submit a Response in this proceeding.
Respondent registered the <alienware-nvidia.xyz> domain on May 10, 2016.
PRELIMINARY ISSUE: MULTIPLE MARKS
There are two trademarks at issue in the instant case: ALIENWARE and NVIDIA. However, Nvidia Corp. has not been joined as a party, and thus has not provided any information asserting rights in the NVIDIA mark in this proceeding. In its Complaint, Complainant alleges that “Nvidia” is “the name of a technology company that designs graphics processing units for Dell and other computer companies.”
The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint
Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
Nvidia Corp. has not been joined as a Complainant in this matter and there is no nexus available through which Complainant can claim to have rights to the transfer of the <alienware-nvidia.xyz> domain name. Therefore, the Panel dismisses the Complaint because Complainant has failed to establish rights in or to the NVIDIA mark per Policy ¶ 4(a)(i). Cf. NIKE, Inc. and Nike Innovate, C.V. v. Mattia Lumini and Yykk Snc, FA 1679233 (Forum July 15, 2016) (denying relief because the complainant failed to establish rights in or to the GOOGLE mark per Policy ¶ 4(a)(i) as it was incorporated fully in the <nikegoogle.com> disputed domain).
Complainant having not established the first element required under the ICANN Policy, the Panel concludes that relief shall be DENIED.
Accordingly, it is Ordered that the <alienware-nvidia.xyz> domain name REMAIN WITH Respondent.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 22, 2016
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