Dell Inc. v. Sakshi Singh
Claim Number: FA1801001765560
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Sakshi Singh (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellcustomerservices.net>, registered with NameCheap, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 5, 2018; the Forum received payment on January 5, 2018.
On January 5, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <dellcustomerservices.net> 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 January 8, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 29, 2018 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@dellcustomerservices.net. Also on January 8, 2018, 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 2, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <dellcustomerservices.net> domain name is confusingly similar to Complainant’s DELL mark.
2. Respondent does not have any rights or legitimate interests in the <dellcustomerservices.net> domain name.
3. Respondent registered and uses the <dellcustomerservices.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dell Inc., uses its DELL mark to promote its computer-related products and services, and holds a registration for the mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,616,571, registered Oct. 9, 1990).
Respondent registered the <dellcustomerservices.net> domain name on July 18, 2017, and uses it pass itself off as Complainant or Complainant’s affiliate.
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 Complainant has rights in the DELL mark under Policy ¶ 4(a)(i) through its through registration with USPTO. See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)).
Respondent’s <dellcustomerservices.net> domain name incorporates the DELL mark, and merely adds the generic term “customer services” and the gTLD “.net.” The addition of a generic term and a gTLD do not distinguish a disputed domain name from a mark. See YETI Coolers, LLC v. Randall Bearden, FA 16060016880755 (Forum Aug. 10, 2016) (finding that the words “powder coating” in the <yetipowdercoating.com> domain name are “merely explicative and directly refer to some of the services rendered by the Complainant” and, therefore, create an “irrefutable confusing similarity” to complainant’s YETI mark); see also Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Forum Sept. 7, 2005) (“[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark.”). Thus, the Panel finds that Respondent’s <dellcustomerservices.net> domain name is confusingly similar to Complainant’s DELL mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
Complainant claims that Respondent does not have rights or legitimate interests in the <dellcustomerservices.net> domain name and is not commonly known by the disputed domain name. Complainant has not licensed or authorized Respondent to use its DELL mark. The WHOIS information lists “Sakshi Singh” as the registrant of the disputed domain name. In the absence of any evidence to the contrary, the Panel finds that Respondent is not commonly known by the <dellcustomerservices.net> domain name under Policy ¶ 4(c)(Ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Complainant argues that Respondent is not using the <dellcustomerservices.net> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant claims that Respondent uses the domain name to resolve to a website that attempts to deceive Internet users into thinking that Respondent is Complainant or Complainant’s affiliate. Use of a domain name to pass off as a complainant is not a bona fide offering of goods or services or legitimate noncommercial or fair use. See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”); see also Kmart of Mich., Inc. v. Cone, FA 655014 (Forum Apr. 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not 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) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website). Complainant provides screenshots of the <dellcustomerservices.net> domain name’s resolving website displaying Complainant’s DELL mark and logo and Complainant’s blue and white color scheme, promoting computer services identical to Complainant’s services, and featuring a “Contact Us” page that prompts Internet users to disclose personal information. The Panel finds that Respondent uses the disputed domain name to pass itself off as Complainant and thus fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use.
The Panel finds that complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent uses the disputed domain name to pass itself off as Complainant or Complainant’s affiliate and that Respondent likely profits by selling Internet users’ personal information. Use of a domain name to cause confusion as to the source, sponsorship, affiliation, or endorsement of the content therein is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”). Accordingly, the Panel finds that Respondent uses the <dellcustomerservices.net> domain name to pass itself off as Complainant or Complainant’s affiliate for Respondent’s commercial gain, in bad faith under Policy ¶ 4(b)(iv).
Complainant claims that Respondent’s inclusion of a disclaimer on the <dellcustomerservices.net> domain name’s resolving website does not alleviate the confusion caused by Respondent’s use of the DELL mark. The Panel agrees and finds that Respondent’s inclusion of a disclaimer is insufficient to mitigate a finding of bad faith. See Ciccone v. Parisi, D2000-0847 (WIPO Oct. 12, 2000) (“Respondent’s use of a disclaimer on its website is insufficient to avoid a finding of bad faith. First, the disclaimer may be ignored or misunderstood by Internet users. Second, a disclaimer does nothing to dispel initial interest confusion that is inevitable from Respondent’s actions. Such confusion is a basis for finding a violation of Complainant’s rights.”).
Complainant contends that Respondent must have known of Complainant’s rights in its famous DELL mark because Respondent used the disputed domain name to host a website that copies Complainant’s logo, features pictures of Complainant’s products, and offers services for Complainant’s products. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the DELL mark and thus registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”).
The Panel finds that 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 <dellcustomerservices.net> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 4, 2018
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