Dell Inc. v. Ramsey Jones
Claim Number: FA1807001799075
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Ramsey Jones (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delldriverss.com>, registered with NameCheap, Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 30, 2018; the Forum received payment on July 30, 2018.
On July 30, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <delldriverss.com> 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 August 2, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 22, 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@delldriverss.com. Also on August 2, 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 August 24, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a world leader in the marketing of computers, computer parts and accessories, computer service and support and related products and services.
Complainant uses its DELL mark to promote its products and services.
Complainant holds a registration for the DELL trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 1,616,571, registered October 9, 1990, most recently renewed as of February 1, 2010.
Respondent registered the domain name <delldriverss.com> on October 10, 2017.
The domain name is confusingly similar to Complainant’s DELL mark.
Respondent is not authorized to use Complainant’s DELL mark.
Respondent has not been commonly known by the domain name.
Respondent fails to use the domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
Instead, Respondent employs the domain name to pass itself off as Complainant online by resolving it to a website that mimics Complainant’s own website.
The resolving website features several “Download” links that may contain files that are counterfeit versions of Complainant’s software or malicious software.
Respondent lacks both rights to and legitimate interests in the domain name.
Respondent’s use of the domain name disrupts Complainant’s business.
Respondent uses the domain name to acquire commercial gain by creating confusion among Internet users as to the possibility of Complainant’s association with it.
Respondent knew of Complainant’s rights in the DELL mark at the time the domain name was registered.
The domain name is an instance of typo-squatting.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the DELL trademark sufficient for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Indonesia). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the central question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <delldriverss.com> domain name is confusingly similar to Complainant’s DELL trademark. The domain name contains the mark in its entirety, with only the addition of the misspelled generic term “drivers,” which relates to an aspect of Complainant’s business, and the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum January 21, 2016) (finding that confusing similarity existed where a disputed domain name contained a UDRP complainant’s entire mark and differed only by the addition of a generic phrase and gTLD, the differences between the domain name and the mark being insufficient to distinguish one from the other for purposes of the Policy).
See also Coachella Music Festival, LLC v. Domain Administrator / China Capital Investment Limited, FA 1734230 (Forum July 17, 2017):
The addition of letters - particularly of those that create a common misspelling - fails to sufficiently distinguish a domain name from a registered mark.
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <delldriverss.com> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <delldriverss.com> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the DELL mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Ramsey Jones,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent uses the <delldriverss.com> domain name to pass itself off as Complainant online by resolving to a website that mimics Complainant’s own website. This use is neither a bona fide offering of goods or services by means of the domain name under Policy nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent either rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (refusing to find rights to or legitimate interests in a domain name for a respondent where the domain name “resolves to a website that Respondent has designed to mimic Complainant’s own in an attempt to pass itself off as Complainant”).
In addition, Complainant contends that Respondent may be using the contested <delldriverss.com> domain name to distribute malware or counterfeit versions of Complainant’s own products. If true, these behaviors would reinforce the conclusion reached just above under Policy ¶ 4(c)(i)-(iii).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the challenged <delldriverss.com> domain name, as alleged in the Complaint, disrupts the business of Complainant. This stands as proof that Respondent both registered and uses the domain name in bad faith within the meaning of Policy ¶ 4(b)(iii). See, for example, Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum March 8, 2007) (finding that a respondent’s registration and use of a disputed domain name, which resolved to a website virtually identical to that of a UDRP complainant, was in bad faith under Policy ¶ 4(b)(iii)).
We are likewise convinced by the evidence that Respondent’s employment of the <delldriverss.com> domain name, which we have found is confusingly similar to Complainant’s DELL trademark, to profit from thus confusion caused among Internet users as to the possibility of Complainant’s association with the domain name demonstrates bad faith in its registration and use under Policy ¶ 4(b)(iv). See, for example, Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002):
Respondent is using the domain name at issue to resolve to a web-site at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Com-plainant’s business and trademarks. The Panel finds that this con-duct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.
Moreover, it is evident from the record that Respondent knew of Complainant and its rights in the DELL trademark when it registered the <delldriverss.com> domain name. This is independent proof of Respondent’s bad faith in the registration of the domain name. See Yahoo! Inc. v. Butler, FA 744444 (Forum August 17, 2006) (finding bad faith where a respondent was "well-aware of” a UDRP complainant's … mark” at the time of its registration of a confusingly similar domain name).
Finally, under this head of the Policy, it is plain that Respondent engaged in typo-squatting by registering the <delldriverss.com> domain name containing a common misspelling made by Internet users when entering into their web browsers the names of enterprises with which they wish to do business online. Typo-squatting, standing alone, is evidence of bad faith registration of a domain name under Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Forum October 15, 2003):
Respondent’s registration and use of [the domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting itself is evidence of bad faith registration … pursuant to Policy ¶ 4(a)(iii).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <delldriverss.com> domain name be forthwith TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 27, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page