Dell Inc. v. lalit Ahuja / 360 techmart limited
Claim Number: FA1701001713777
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is lalit Ahuja / 360 techmart limited (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dell-printer.com> and <dell-laptop-support-number.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 January 23, 2017; the Forum received payment on January 23, 2017.
On January 24, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dell-printer.com> and <dell-laptop-support-number.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 January 25, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 14, 2017 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-printer.com, postmaster@dell-laptop-support-number.com. Also on January 25, 2017, 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 February 21, 2017, 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
1. Complainant is a world leading company in computers, computer accessories, and other computer-related products and services. Complainant has rights in the DELL mark due to its numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,860,272, registered October 25, 1994).
2. The <dell-printer.com> and <dell-laptop-support-number.com> domain names[1] are confusingly similar to Complainant’s DELL mark, as Respondent has simply attached a hyphen or two, generic terms and the generic top-level domain (“gTLD”) “.com” to the domain names.
3. Respondent lacks rights or legitimate interests in the domain names. Respondent is not commonly known by the domain names, as demonstrated by the available WHOIS information associated with each domain name.
4. Further, Respondent is neither licensed nor authorized to use the DELL mark in any way. Further, Respondent has failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain names. Rather, Respondent uses the domain names to pass itself off as Complainant and offer computer support services that are in direct competition with services offered by Complainant.
5. Respondent has registered and is using the domain names in bad faith. Respondent’s registration of multiple domain names in the instant proceeding demonstrates a pattern of bad faith.
6. Next, Respondent uses the domain names to attract Internet users to its website for commercial gain. Finally, Respondent has engaged in phishing activities in attempting to gather Internet users’ personal information.
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 <dell-printer.com> and <dell-laptop-support-number.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 is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has rights in the DELL mark according to Policy ¶ 4(a)(i) due to its numerous trademark registrations with the USPTO (e.g., Reg. No. 1,860,272, registered October 25, 1994). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (“There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark.”).
Next, Complainant argues that Respondent’s domain names are confusingly similar to Complainant’s DELL mark as Respondent has simply attached hyphens, generic terms and the gTLD “.com.” Such changes are insignificant according to Policy ¶ 4(a)(i). See Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”); see also Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a 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 <dell-printer.com> and <dell-laptop-support-number.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 (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.
Complainant alleges that Respondent lacks rights or legitimate interests in the domain names under Policy ¶ 4(a)(ii). In so arguing, Complainant asserts that Respondent is not commonly known by the domain names. Complainant points to the available WHOIS information for the domain names, which lists “lalit Ahuja” as registrant. Further, Complainant notes that Respondent has been neither licensed nor authorized to use the DELL marks in any way. Thus, given the lack of evidence to conclude otherwise, the Panel finds that Respondent is not commonly known by the <dell-printer.com> and <dell-laptop-support-number.com> domain names pursuant to Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (FORUM May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)).
Complainant also argues that Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the domain names. Complainant argues that Respondent uses the <dell-printer.com> and <dell-laptop-support-number.com> domain names to attract Internet users to competing computer support services. Such behavior does not indicate a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the domain names. See General Motors LLC v. MIKE LEE, FA 1659965 (FOORUM March 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business 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).”). Accordingly, the Panel finds that Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the <dell-printer.com> and <dell-laptop-support-number.com> domain names pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant has shown that Respondent uses the <dell-printer.com> and <dell-laptop-support-number.com> domain names to attract Internet users to its own websites for commercial gain by offering competing computer support services. Such behavior is indicative of bad faith under Policy ¶ 4(b)(iii) or Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (FORUM May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”). Thus, the Panel may find that Respondent has acted in bad faith under Policy ¶ 4(b)(iii) and/or Policy ¶ 4(b)(iv).
Finally, Complainant argues that Respondent uses the domain names to engage in a phishing scheme, which is further evidence of bad faith under Policy ¶ 4(a)(iii). Complainant argues that Respondent uses the domain names to gather Internet users’ personal information. Complainant believes that Respondent uses the “Contact Us” portion of the resolving websites to solicit personal information from Internet users. The records supports Complainant’s contention that Respondent has acted in bad faith under Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).
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 <dell-printer.com> and <dell-laptop-support-number.com> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: February 27, 2017
[1] The <dell-printer.com> domain name was registered on July 6, 2016 and the <dell-laptop-support-number.com> domain name was registered on June 3, 2016.
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