Dell Inc. v. Arunas Petreikis / UAB Egrija
Claim Number: FA1703001721416
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Arunas Petreikis / UAB Egrija (“Respondent”), Lithuania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <laptopdell.xyz>, registered with Uniregistrar Corp.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 13, 2017; the Forum received payment on March 13, 2017.
On March 13, 2017, Uniregistrar Corp confirmed by e-mail to the Forum that the <laptopdell.xyz> domain name is registered with Uniregistrar Corp and that Respondent is the current registrant of the name. Uniregistrar Corp has verified that Respondent is bound by the Uniregistrar Corp 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 15, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 4, 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@laptopdell.xyz. Also on March 15, 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 April 12, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a world leader in computers, computer accessories, and other computer-related products and services. Over the years, it has invested heavily in marketing under its marks, devoting hundreds of millions of dollars to advertising and promoting its products and services through many media in many countries. It has used television, radio, magazines, newspapers, and the Internet as marketing media. It has been, and continues to be, extremely successful. It sells its products and services in over 180 countries. For several years, Complainant has been the world’s largest direct seller of computer systems. In connection with this business, Complainant has used the DELL mark to promote its goods and services. Complainant has rights in the DELL mark based upon registration in the United States in 1994. The mark is also registered in other countries around the world. As a consequence of its marketing and sales success, Complainant and its marks have become famous in the United States and many other countries.
According to Complainant, the disputed domain name is confusingly similar to Complainant’s mark as it incorporates the mark in its entirety, merely adding the generic term “laptop” and the generic top level domain (“gTLD”) “.xyz.”
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not been commonly known by the disputed domain name and has failed to use the domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain name diverts Internet users to an adult dating website featuring adult-oriented content.
Further, says Complainant, Respondent should be considered to have registered and used the domain name in bad faith. Respondent registered the disputed domain name without Complainant’s authority or permission. Respondent utilizes the domain name to intentionally attract Internet users by creating a likelihood of confusion for commercial gain of Respondent.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark DELL and uses it to market computer products and services around the world. The mark is famous.
Complainant’s rights in its mark date back to at least 1994.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a website that offers adult entertainment material.
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 disputed domain name, <laptopdell.xyz>, is confusingly similar to Complainant’s DELL mark as it incorporates the mark in its entirety, merely adding the generic term “laptop” and the gTLD “.xyz.” Addition of generic terms and gTLDs do not sufficiently differentiate a domain name and a mark. See Gillette Co. v. RFK Assocs., FA 492867 (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); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel therefore finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to register a domain name utilizing Complainant’s mark. Respondent is not commonly known by the disputed domain name: the WHOIS information of record identifies Respondent as “Arunas Petreikis”. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by a disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum Jul. 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The Panel therefore finds, pursuant to Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
The disputed domain name resolves to a website that offers adult-oriented content. Use of a disputed domain name to redirect users to adult-oriented content is not a use indicative of rights or legitimate interests pursuant to Policy ¶¶ 4(c)(i) & (iii). See Tumblr, Inc. v. Srivathsan GK, FA1409001582401 (Forum Oct. 30, 2014) (“Consequently, the Panel finds that Respondent’s use of the disputed domain name for adult-oriented images also does not provide a bona fide offering of goods or services, or make a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).”). Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use further evidences its lack of rights or legitimate interests in <laptopdell.xyz> pursuant to Policy ¶ 4(c)(i) & (iii). The Panel therefore finds under Policy ¶ 4(c)(i) or (iii) that Respondent has not used the disputed domain name for a bona fide offering of goods or services or for any legitimate noncommercial or fair use, and thus lacks rights and legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for his use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already mentioned, the disputed domain name resolves to a web site containing adult-oriented material for which Respondent obtains commercial gains. Use of a domain name to intentionally attract Internet users seeking a complainant’s website to respondent’s website featuring adult-oriented content for respondent’s gain constitutes bad faith pursuant to Policy ¶ 4(b)(iv). See Google Inc. v. Bassano, FA 232958 (Forum Mar. 8, 2004) (holding that the respondent’s use of the <googlesex.info> domain name to intentionally attract Internet users to a website featuring adult-oriented content constituted bad faith registration and use under Policy ¶ 4(b)(iv)). Consequently, the Panel finds that Respondent registered and utilized the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Further, Respondent’s use of the disputed domain name to divert Internet users to adult-oriented materials is additional evidence of Respondent’s bad faith. Use of a disputed domain that tarnishes the mark by diverting Internet users to adult-oriented content can support a finding of bad faith pursuant to Policy ¶ 4(a)(iii). See Molson Canada 2005 v. JEAN LUCAS / DOMCHARME GROUP, FA1412001596702 (Forum Feb. 10, 2015) (“Further, Respondent’s diversion of the domain names to adult-oriented sites is registration and use of the disputed domain names in bad faith under Policy ¶ 4(a)(iii).”); see also Wells Fargo & Co. v. Party Night Inc., FA 144647 (Forum Mar. 18, 2003) (finding that the respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith). Thus Panel further finds that Respondent registered and utilized the disputed domain name in bad faith under 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 <laptopdell.xyz> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 13, 2017
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