Dell Inc. v. SNAB Corporation
Claim Number: FA1805001785051
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is SNAB Corporation (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellservicecenterhyderabad.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 4, 2018; the Forum received payment on May 4, 2018.
On May 4, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dellservicecenterhyderabad.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 May 4, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 24, 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@dellservicecenterhyderabad.com. Also on May 4, 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 May 29, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant, Dell Inc., is a world leader in computers and offers its computer-related products and services in connection to the DELL mark.
Complainant has rights in the DELL mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,860,272, registered on Oct. 25, 1994).
Respondent’s <dellservicecenterhyderabad.com> domain name is confusingly similar to Complainant’s DELL mark as Respondent merely adds the descriptive phrase “service center”, the geographic term “Hyderabad,” and the “.com” generic top-level domain (“gTLD”) to the DELL mark.
Respondent does not have rights or legitimate interests in the <dellservicecenterhyderabad.com> domain name. Respondent is not permitted or licensed to use Complainant’s DELL mark and is not commonly known by the disputed domain name. Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent attempts to pass itself off as Complainant and uses the disputed domain name to divert Internet users away from Complainant. In addition, Respondent uses the disputed domain name to obtain users’ personal information through a phishing scheme.
Respondent has registered and used the <dellservicecenterhyderabad.com> domain name in bad faith. Respondent attempts to pass itself off as Complainant in order to attract users to the disputed domain name, which offers competing computer-related services. Additionally, Respondent attempts to obtain users’ personal information through a phishing scheme. Furthermore, Respondent had actual knowledge of Complainant’s rights in the DELL mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the DELL mark as demonstrated by its registration of such mark with the USPTO.
Complainant’s rights in the DELL mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent uses the <dellservicecenterhyderabad.com> to pose as Complainant and perpetrate a phishing scheme designed to obtain personal information from third parties.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for the DELL trademark evidences its rights in such mark for the purposes of Policy ¶ 4(a)(I). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Additionally, the at-issue domain name contains Complainant’s entire DELL trademark with the descriptive term “servicecenter” and geographic term “hyderabad” appended thereto, followed by the top-level domain name “.com”. The differences between the at-issue <dellservicecenterhyderabad.com> domain name and Complainant’s DELL trademark are insufficient to distinguish one from the other for the purposes of the Policy. In fact, the domain name’s included term “servicecenter” suggests Complainant’s service related business and thus adds to any confusion between the domain name and Complainant’s trademark. Notably, Complainant offers support services at <www.support.dell.com>. The geographic term “hyderabad” is also suggestive of Complainant as Complainant has corporate offices in Hyderabad, India. Therefore, the Panel finds that pursuant to Policy ¶4(a)(i) Respondent’s <dellservicecenterhyderabad.com> domain name is confusingly similar to Complainant’s DELL trademark. See Traditional Medicinals, Inc. v. Flippa Chick, FA1006001328702 (Forum July 15, 2010) (“Respondent’s disputed domain name contains Complainant’s SMOOTH MOVE mark in its entirety after removing the space separating the terms of the mark, adds the descriptive terms “herbal tea” and adds the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of descriptive terms creates a confusing similarity between the disputed domain name and Complainant’s mark.”); see also Doosan Corporation v. philippe champain, FA 1636675 (Forum Oct. 13, 2015) (finding that geographic designations or terms descriptive of a complainant’s business operations do not remove a domain name from the realm of confusing similarity.); 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).).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “SNAB Corporation” and the record contains no evidence that otherwise tends to prove that Respondent is commonly known by the <dellservicecenterhyderabad.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <dellservicecenterhyderabad.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Furthermore, Respondent uses the <dellservicecenterhyderabad.com> domain name to direct Internet users to a website controlled by Respondent. The website, which at the top of the page displays “Dell Service Center,” features Complainant’s DELL logo, offers computer-related services, and contains a blue and white color scheme similar to Complainant’s official website. Respondent’s website poses as if it were sponsored by Complainant, faking such sponsorship through its <dellservicecenterhyderabad.com> address and additionally by the website’s misappropriation of Complainant’s trade dress. Thereby, Respondent attempts to pass itself off as Complainant. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii). See Microsoft Corp. v. lijiuliang, FA0912001300266 (Forum Feb. 11, 2010) (“Respondent’s attempt to pass itself off as Complainant by imitating Complainant’s official website … is 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)”); see also Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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 Netflix, Inc. v. Irpan Panjul / 3corp.inc, FA 1741976 (Forum Aug. 22, 2017) (“The usage of Complainant’s NETFLIX mark which has a significant reputation in relation to audio visual services for unauthorised audio visual material is not fair as the site does not make it clear that there is no commercial connection with Complainant and this amounts to passing off . . . As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below, Policy ¶ 4(b) specific bad faith circumstances as well as other circumstances lead the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4 (a)(iii) of the Policy.
First, Respondent registered and uses the <dellservicecenterhyderabad.com> domain name to pass itself off as Complainant. Respondent, through the at-issue confusingly similar domain name and its referenced website dressed to look like Complainant, creates the false impression that Respondent’s commercial website is sponsored by Complainant when it is not. Using the confusingly similar domain name to pass itself off as Complainant and trade upon Complainant’s goodwill for commercial gain demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also 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.”).
Next, Respondent’s use of the domain name in connection with a phishing scheme is further evidence of Respondent’s bad faith under Policy ¶ 4(a)(iii). Respondent’s <dellservicecenterhyderabad.com> website displays an online form which allows users to give information such as name, email address, and phone number to “Get in Touch” with Complainant when they are really connecting with Respondent. 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).”).
Finally, Respondent registered the <dellservicecenterhyderabad.com> domain name knowing that Complainant had trademark rights in the DELL mark. Respondent’s prior knowledge is evident from Respondent’s use of the <dellservicecenterhyderabad.com> domain name and the corresponding website addressed by the domain name, to attempt to pass itself off as Complainant. It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <dellservicecenterhyderabad.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See 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 had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellservicecenterhyderabad.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: May 30, 2018
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