Dell Inc. v. Evgeniy Morozov
Claim Number: FA1609001692315
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Evgeniy Morozov (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dell-moscow.com> and <dell-centre.com>, registered with DomainContext, Inc.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 2, 2016; the Forum received payment on September 2, 2016.
After numerous requests, the Registrar, DomainContext, Inc., has not timely confirmed to the Forum that the <dell-moscow.com> and <dell-centre.com> domain names is registered with DomainContext, Inc., or that the Respondent is the current registrant of the name. Registrar’s non-compliance has been reported to ICANN. The Forum’s standing instructions are to proceed with this dispute.
On September 12, 2016, the Forum served the Complaint and all Annexes, including a Russian language Written Notice of the Complaint, setting a deadline of October 3, 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@dell-moscow.com, postmaster@dell-centre.com. Also on September 12, 2016, the Russian language 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.
On September 13, 2016, DomainContext, Inc. confirmed by e-mail to the Forum that the <dell-moscow.com> and <dell-centre.com> domain names are registered with DomainContext, Inc. and that Respondent is the current registrant of the names. DomainContext, Inc. has verified that Respondent is bound by the DomainContext, 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”).
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On October 10,2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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
Complainant has rights in the DELL mark through its registrations with the United Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,860,272, registered Oct. 25, 1994). See Compl., at Attached Ex. B. Respondent’s domain names are confusingly similar to the DELL mark because they each contain the mark, along with inconsequential changes, such as hyphens, generic (“centre”) or geographic (“Moscow”) words, and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights and legitimate interests in or to the disputed domain names. Respondent is not commonly known by the disputed domain names. Further, both websites encourage visitors to “Sign up for Repair,” requesting such information from consumers as their ФиО/ ваше имя or Name, Контактный телефон/ телефон or telephone number, and device type. See Compl., at Attached Ex. D (Printouts of the websites at the disputed domain names, translated to English via Google Translate and in original Russian). After falsely creating an association with Complainant, Respondent is attempting to gather Internet users’ personal information, including the visitors’ name, phone number, and device type. Id. Respondent may then commercially benefit by abusing that information and/or by selling that information to third parties. The foregoing does not represent any bona fide offering of goods or services or any legitimate noncommercial or fair use.
Respondent registered and used the disputed domain names in bad faith. Respondent has registered two domain names encompassing Complainant’s mark and owns more than twenty domain names containing the brand names of other well-known technology companies (e.g., <acer-centre.com>, <acer-moscow.com>, <alcatel-russia.com>, <asus-centre.com>, <compaq-russia.com>, <hp-centre.com>, <htc-centre.com>, <lenovo-centre.com>, <lg-centre.com>, <msi-centre.com>, <msi-moscow.com>, <nokia-centre.com>, <remont-noutbukov-asus.com>, <remont-noutbukov-hp.com>, <russia-fujitsu.com>, <samsung-centre.com>, <samsung-galaxy-remont.com>, <sony-centre.com>, <sony-moscow.com>, <sony-xperia-remont.com>, <toshiba-centre.com>, etc.), many used to host websites offering brand-specific services, demonstrating a pattern of bad faith per Policy ¶ 4(b)(ii). See Compl., at Attached Ex. E (Printouts of the Whois records of Respondent’s additional domain names and representative printouts of corresponding websites). Respondent’s attempts to offer products/services similar or identical to Complainant’s indicates bad faith as per Policy ¶ 4(b)(iv). Last, Respondent had actual or at least constructive knowledge when registering and subsequently using the disputed domain names because the resolving websites clearly copy the color scheme and look and feel of Complainant’s online offerings in an attempt to pass itself off as Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <dell-moscow.com> and <dell-centre.com> domain names were registered on May 19, 2016 and February 25, 2016, respectively.
The Panel finds that the disputed domain names are confusingly similar with the valid and subsisting trademark, DELL, of the Complainant, the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
The Panel further finds that, pursuant to UDRP Rule 11(a), the totality of the circumstances indicate that Respondent is conversant and proficient in the English language. After considering the circumstances of the present case, the Panel decides that the proceeding should be in English.
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 (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 Panel finds that the disputed domain names are confusingly similar with the valid and subsisting trademark, DELL, owned by the Complainant. The Complainant has adequately pled its rights in and to the trademark. The Respondent arrives at the disputed domain names by taking the trademark in total and appending to it inconsequential changes, such as hyphens, generic (“centre”) or geographic (“Moscow”) words, and the generic top-level domain (“gTLD”) “.com.” These changes do not distinguish the disputed domain names from the trademark
As such, the Panel finds the disputed domain names to be confusingly similar to the Complainant’s trademark, DELL.
The Panel further finds that the Respondent lacks any rights or legitimate interests in or to the disputed domain names. Respondent is apparently not commonly known by the disputed domain names, and Complainant has not authorized Respondent’s incorporation of the DELL mark into the disputed domain names. The WHOIS information of record shows “Evgeniy Morozov” as registrant. While Respondent has not responded to the Complaint, the Panel finds no evidence weighing against the prima facie case made by Complainant under Policy ¶ 4(c)(ii). As such, the Panel finds that the Respondent is not commonly known by the disputed domain name.
Further, Complainant argues that both websites encourage visitors to “Sign up for Repair,” requesting such information from consumers as their ФиО/ ваше имя or Name, Контактный телефон/ телефон or telephone number, and device type. See Compl., at Attached Ex. D (Printouts of the websites at the disputed domain names, translated to English via Google Translate and in original Russian). Complainant claims that after falsely creating an association with Complainant, Respondent is attempting to gather Internet users’ personal information, including the visitors’ name, phone number, and device type. Id. Respondent may then commercially benefit by abusing that information and/or by selling that information to third parties. Panels have considered such uses to not show a bona fide offering of goods or services or any legitimate noncommercial or fair use. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (FORUM Mar. 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information).
Accordingly, the Panel finds that the Respondent lacks any rights or legitimate interests in or to the disputed domain names.
The Panel finds that Respondent registered and used the disputed domain names in bad faith. Complainant establishes that Respondent has registered 2 domain names encompassing Complainant’s mark and owns more than 20 domain names containing the brand names of other well-known technology companies (e.g., <acer-centre.com>, <acer-moscow.com>, <alcatel-russia.com>, <asus-centre.com>, <compaq-russia.com>, <hp-centre.com>, <htc-centre.com>, <lenovo-centre.com>, <lg-centre.com>, <msi-centre.com>, <msi-moscow.com>, <nokia-centre.com>, <remont-noutbukov-asus.com>, <remont-noutbukov-hp.com>, <russia-fujitsu.com>, <samsung-centre.com>, <samsung-galaxy-remont.com>, <sony-centre.com>, <sony-moscow.com>, <sony-xperia-remont.com>, <toshiba-centre.com>, etc.), many allegedly used to host websites offering brand-specific services. See Compl., at Attached Ex. E (Printouts of the Whois records of Respondent’s additional domain names and representative printouts of corresponding websites).
Panels have found a pattern of bad faith registrations under Policy ¶ 4(b)(ii) based on registration of multiple infringing domain names in a single UDRP dispute. See YAHOO! INC v. SYRYNX, INC., D2000-1675 (WIPO Jan. 30, 2001) (finding a bad faith pattern pursuant to Policy ¶ 4(b)(ii) in the respondent's registration of two domain names incorporating the complainant's YAHOO! mark).
As the Respondent has registered two disputed domain names which infringe on Complainant’s trademark, the Panel finds a pattern of bad faith under Policy ¶ 4(b)(ii).
Next, Complainant argues that Respondent’s attempts to offer products/services similar or identical to Complainant’s indicates bad faith as per Policy ¶ 4(b)(iv). The Panel agrees that the foregoing suggests that Respondent is engaged in a scheme to phish for Internet users’ personal information. Past panels have found such behavior to impute Policy ¶ 4(b)(iv) bad faith. See Wells Fargo & Co. v. Maniac State, FA 608239 (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 has engaged in Policy ¶ 4(b)(iv) bad faith use and registration.
Last, Complainant argues that Respondent had actual and/or constructive knowledge of Complainant's rights in the DELL mark. Complainant argues that its longstanding use of the mark and Respondent's competitive use at the resolving websites indicate 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) with actual knowledge of those prior rights.
As such, the Panel finds that the Respondent has engaged in bad faith use and registration of the disputed domain names.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <dell-moscow.com> and <dell-centre.com> domain names transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: October 12, 2016
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