Dell Inc. v. lakhan singh / milkha singh
Claim Number: FA1611001704507
Complainant is Dell Inc. (“Complainant”), represented by Elizabeth M. Stafki, Texas, USA. Respondents are lakhan singh / milkha singh (collectively “Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 23, 2016; the Forum received payment on November 23, 2016.
On November 28, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.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 December 5, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 27, 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@dellsupportphonenumbers.com, and postmaster@delltechnicalsupportphonenumber.com. Also on December 5, 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 December 30, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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.
Preliminary Issue: Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” The record shows that the registrant uses the same telephone number and email address for both of the domain names in dispute. Moreover, the format of the resolving websites is nearly identical and both websites encourage visitors to call the same telephone number, 1-800-204-4427. Accordingly, the Panel finds that the requirements of Paragraph 3(c) have been satisfied. Accordingly, both Respondents will be referred to as “Respondent” in this proceeding.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
1. Complainant has rights in the DELL mark through its registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,860,272, registered Oct. 25, 1994). Respondent’s <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com>[1] are confusingly similar to the DELL mark because they incorporate the DELL mark along with the terms “support” or “technical support” and “phone number(s),” and the generic top-level domain (“gTLD”) “.com.”
2. Respondent has no rights or legitimate interests in <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com> domain names. Respondent is not commonly known by the domain names. Further, Respondent seeks to falsely create an association with Complainant by incorporating the look and feel of Complainant’s websites (blue and white color scheme, display of DELL products and promoting computer replacement parts and repair services), and attempts to gather Internet users’ personal information through a “Contact Us” form. This use does not represent a bona fide offering of goods or services or any legitimate noncommercial or fair use.
3. Respondent registered and uses the <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com> domain names in bad faith. Respondent’s web layout is substantially similar to the resolving website of a domain name that was previously transferred to Complainant in a recent UDRP dispute: Dell Inc. v. Pritam Singh c/o Pandaje Technical Services Pvt Ltd., FA1645279 (FORUM Dec. 5, 2015) (finding bad faith that respondent registered the domain name at issue with actual knowledge of the DELL Marks and transferring the domain).
4. Respondent’s attempt to falsely create an association to create confusion among Internet users in a “passing off” attempt presumably for commercial gain is prohibited by Policy ¶ 4(b)(iv).
5. Respondent’s actions represent its actual knowledge of Complainant’s rights by registering and using <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com>. Respondent has also engaged a privacy service, which alone shows bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the DELL mark. Respondent’s domain names are confusingly similar to Complainant’s DELL mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com> domain names and that Respondent registered and uses the 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(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.”).
Complainant has rights in the DELL mark through its registrations with the USPTO (e.g., Reg. No. 1,860,272, registered Oct. 25, 1994). See Dell Inc. v. Rino Manangkalangi, FA 1626784 (FORUM Aug. 5, 2015) (holding that Complainant has rights in the ALIENWARE trademark and service mark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with the USPTO.).
Next, the Panel agrees with Complainant that Respondent’s <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com> domain names are confusingly similar to the DELL mark because they incorporate the DELL mark along with the terms “support” or “technical support” and “phone number(s),” and the gTLD “.com.” Where a respondent has included terms in a domain name that are likely to have an association with a complainant, confusing similarity has been found. See Vance Int’l, Inc. v. Abend, FA 970871 (FORUM June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark). Further, the addition of the “.com” gTLD also does not distinguish a domain name from a complainant’s mark. See Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (FORUM Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Therefore, the Panel agrees that Respondent’s <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com> domain names are confusingly similar to the DELL mark under Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com> domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant urges that Respondent registered and uses the <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com> domain names in bad faith. Respondent’s resolving web layout is substantially similar to the resolving website of a domain name that was previously transferred to Complainant in a recent UDRP dispute: Dell Inc. v. Pritam Singh c/o Pandaje Technical Services Pvt Ltd., FA1645279 (FORUM Dec. 5, 2015) (finding bad faith that respondent registered the domain name at issue with actual knowledge of the DELL Marks and transferring the domain). It appears that the resolving websites in this case are merely carbon copies of the website in the previous dispute.
Further, Complainant contends that Respondent’s attempt to falsely create an association with Complainant creates confusion among Internet users in a “passing off” attempt—presumably for commercial gain as per Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (FORUM May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). The Panel agrees that Complainant has provided sufficient proof that Respondent’s use is inherently confusing and that Respondent presumably profits from attaining Internet user information; thereby violating Policy ¶ 4(b)(iv) bad faith registration and use.
Lastly, Complainant argues that Respondent had actual knowledge of Complainant's rights in the DELL mark. Complainant argues that Respondent’s use of the <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com> domain names to host a website which copies Complainant’s logo, displays pictures of complainant’s products, and offers replacement parts and services of Complainant’s products indicates actual knowledge. The Panel agrees. See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (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 (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").
The Panel finds Complainant has satisfied 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 <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: January 6, 2017
[1] The <dellsupportphonenumbers.com> and <delltechnicalsupportphonenumber.com> domain names were both registered on August 20, 2016.
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