Dell Inc. v. ramnik luthra
Claim Number: FA1801001767207
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is ramnik luthra (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellsupporthelp247.com>(the Domain Name), registered with Wild West Domains, LLC.
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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 16, 2018; the Forum received payment on January 16, 2018.
On January 17, 2018, Wild West Domains, LLC confirmed by e-mail to the Forum that the <dellsupporthelp247.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 19, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 8, 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@dellsupporthelp247.com. Also on January 19, 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 12, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:
Complainant is the owner of the famous mark DELL registered, inter alia, in the USA for computers and related goods and services with first use recorded as 1987. It operates a web site at www.dell.com.
The Domain Name registered in 2016 incorporates Complainant’s DELL mark in its entirety merely tacking on the generic phrase ‘support help 247’ (which is likely to be associated with Complainant which offers such services) and the generic top level domain .com which is irrelevant in a UDRP analysis.
Respondent has no rights or legitimate interests in the Domain Name as the Domain Name is being used for a web site that attempts to deceive customers into thinking Respondent is or is connected to Complainant. It does so by using similar blue trade dress and the use of ‘DELL Customer Support’, ‘DELL Support’, ‘DELL Technical Support Number’ and a phone number for ‘DELL help’ to promote computer support services in direct competition with services offered by Complainant. The site also gathers customer information. Respondent is not an authorised provider of Complainant’s computer repair services and is not licensed by Respondent to use its DELL mark. The use is not a nominative fair use.
Respondent is not making a legitimate non commercial or fair use of the Domain Name.
Respondent registered and is using the Domain Name in bad faith. Use of a Domain Name which is confusingly similar to Complainant’s DELL mark in relation to a web site using Complainant’s colour scheme and offering services for Complainant’s products in a way that attempts to suggest Respondent’s services are associated with DELL shows Respondent’s knowledge of Complainant’s rights.
Respondent has attempted to attract for commercial gain Internet users to Respondent’s web site by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of Respondent’s web site and providing competing services. Respondent is attempting to gather Internet users’ personal information after falsely creating an association with Complainant.
The inconspicuous explanation at the bottom of the web site pages that “DELL Technical Support Number is an independent provider of remote tech support for third party products’, use of trade marks is ‘only referential’ and disclaiming any affiliation or endorsement by third parties is unlikely to alleviate any confusion.
Respondent registered the Domain Name for commercial content using a privacy service which has been taken to be a rebuttable presumption of bad faith registration and use.
The website at the Domain Name has links to a Twitter account promoting a similar site misusing the third party HP mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of the famous mark DELL registered, inter alia, in the USA for computers and related goods and services with first use recorded as 1987. It operates a web site at www.dell.com.
Respondent is using the Domain Name for a web site where Respondent refers to itself, its business or services using ‘DELL’ in various forms and offers competing computer services using a similar colour to Complainant’s trade dress.
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 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.”).
Identical or Confusingly Similar
The Domain Name in this Complaint combines Complainant’s DELL mark (registered in the USA for goods and services relating to computers with first use recorded as 1987), the generic phrase ‘supporthelp247’ and the gTLD .com.
The addition of generic terms such as ‘supporthelp247’ does not serve to distinguish the Domain Name from Complainant’s DELL mark especially bearing in mind that Complainant offers computer related services available 24 hours 7 days a week. See Abbott Laboratories v Miles White, FA 1646590 (Forum Dec 10, 2015) (holding that the addition of generic terms particularly terms pertaining to complainant’s business, do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4 (a) (i). )
The gTLD .com does not serve to distinguish the Domain Name from the DELL mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to Complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
Complainant has not authorised Respondent to use the DELL mark.
Respondent used a privacy service and when his details were disclosed does not appear to be commonly known by ‘Dell’. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that Respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that Complainant had not licensed or authorized Respondent to use its ALASKA AIRLINES mark).
The use of the Domain Name is commercial and so cannot be legitimate non commercial use.
Panels have found that a respondent is not using a disputed domain name for a bona fide offering of goods or services nor a legitimate non commercial or fair use if it uses the name to divert Internet users to a web site competing with Complainant under its mark. See Coryn Group Inc v Media Insight, FA 198959 (Forum Dec. 5, 2003).
It is clear from the evidence that Respondent has used the site attached to the Domain Name to promote competing computer services which are not connected with Complainant. The content attached to the Domain Name makes it clear that Respondent was aware of the significance of the DELL name and Complainant’s rights at the time of registration. The usage of Complainant’s DELL mark which has a significant reputation in relation to computer support services is not fair nominative use as the site does not make it clear that there is no commercial connection with Complainant and in several instances Respondent appears to refer to his business and/or his services using DELL in a misleading way, passing them off as being those of or being authorised by Complainant by usage such as ‘Dell Technical Support Number’, ‘Call Now for instant Dell Technical Support’, ‘Dell Customer Support’ and ‘Welcome to Dell Support Help 24x7’. There is a disclaimer, but even that is unclear as it refers to Respondent using DELL in a similar misleading way which suggests a connection with Complainant. As such, overall such use does not, in the view of the Panel, amount to the bona fide offering of goods and services.
Respondent has not answered this Complaint and has not provided any legitimate reason why he should be able to use Complainant’s trade marks in this way. As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
As determined above Respondent's use of the site is commercial and he is using the Domain Name to make a profit from competing services not associated with Complainant in a confusing manner. As outlined above the specific combination of marks and services in the Domain Name and the use on the web site indicates Respondent was aware of Complainant’s rights at the time of registration. It seems clear that the use of Complainant’s mark in the Domain Name and in the references on the web site where Respondent refers to his business and/or his services using DELL in a misleading way together with the use of a similar blue to Complainant would cause people to associate the website at the Domain Name with Complainant and its business and services. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with Complainant’s trade marks as to the source, sponsorship, affiliation or endorsement of the web site. See CAN Financial Corporation v William Thomson/CAN Insurance, FA1401001541484 (Forum Feb 28, 2014)(finding that Respondent had engaged in bad faith under Policy 4 (b)(iv) by using a confusingly similar domain name to attract internet users to its own site where it offered competing services). This also appears designed to disrupt the business of a competitor. See LoanDepot.com, LLC v Kaolee (Kay) Vang-Thao, FA 1762308 (Forum Jan 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy 4 (b)(iii).) The use of a disclaimer does not preclude a finding of bad faith under Policy 4 (b)(iii). See Continental Airlines Inc v Varangian, FA 1106528 (Forum Dec 26, 2007). In any event the disclaimer refers to Respondent using ‘Dell’ and so is unclear.
As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith under paragraphs 4 (b)(iii) and (iv) and has satisfied the third limb of the Policy. There is, therefore, no need to consider additional alleged grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellsupporthelp247.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 21, 2018
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