Dell Inc. v. Wilson Wilson
Claim Number: FA1808001804322
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Wilson Wilson (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delllaptopservicegbs.com>, registered with NameCheap, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 31, 2018; the Forum received payment on August 31, 2018.
On August 31, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <delllaptopservicegbs.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 September 4, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 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@delllaptopservicegbs.com. Also on September 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 September 25, 2018, 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. Complainant sells its products and services in over 180 countries and caters to both business and consumer customer bases. For several years, Complainant has been the world’s largest direct seller of computer systems. As a consequence of its marketing and sales success, Complainant and its DELL mark have become famous in the United States and many other countries. Complainant has rights in the DELL mark based upon its registration of the mark in the United States in 1994. The mark is also registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain name is confusingly similar to its mark because it wholly incorporates the DELL mark, adds the generic phrase “laptop service” and the random letters “gbs”, and incorporates a generic top-level domain name (“gTLD”).
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not authorized to use Complainant’s DELL mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to display a website which promotes links to “game hacking tools,” which Complainant suspects results in getting visitors to complete advertising offers or results in malware installation on the visitor’s computer.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to attract, for commercial gain, Internet users to Respondent’s website to complete advertising offers or to distribute malicious software. Respondent also attempted to conceal its identity through the use of a privacy service. Furthermore, Respondent had actual and constructive 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 owns the mark DELL and uses it to market a range of computer products and services. The mark is famous.
Complainant’s rights in its mark date back to at least 1994.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website displays links to “game hacking tools,” which likely either results in getting visitors to complete advertising offers or results in malware installation on the visitor’s computer.
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 is confusingly similar to Complainant’s mark because it wholly incorporates the DELL mark while adding the generic phrase “laptop service”, random letters, and a gTLD. The addition of generic terms and random letters to a disputed domain name may not sufficiently mitigate any confusing similarity between the disputed domain name and a complainant’s mark under Policy ¶ 4(a)(i). See 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).); see also Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015) (“Where a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”). Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Respondent is not authorized by Complainant to use its DELL mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to identify a respondent per Policy ¶ 4(c)(ii). 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). Here, the WHOIS information of record identifies Respondent as “Wilson Wilson.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent uses the domain name to display a website which promotes and links to “game hacking tools,” which likely either results in getting visitors to complete advertising offers or results in malware installation on the visitor’s computer. This does not constitute a bona fide offering or a legitimate use per Policy ¶¶ 4(c)(i) or (iii). See Westinghouse Electric Corporation v. Abhishek Mahindrakar, Case No. FA1709001749574 (Forum Oct. 17, 2017) (“Using a domain name to promote and link to game hacking tools in order to get visitors to take online surveys or complete advertising offers is not a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Forum Jun. 23, 2009) (finding that a respondent’s use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses “failed to create any semblance of a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)”). Accordingly, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s famous 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 noted, Respondent attempts to attract, for commercial gain, Internet users to its website and likely distributes malicious software to consumers. Use of a confusingly similar domain name for commercial gain violates the Policy. 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).”). Further, the non-exclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith pursuant to Policy ¶ 4(a)(iii). See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith). Use of a disputed domain to download malicious software into unsuspecting viewers’ computers may evidence a respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Microsoft Corporation v. ABK / George Owens a/k/a Rohan / Rohan Suha, FA1211001473573 (Forum Jan. 21, 2013) (holding that because the respondent used the disputed domain name to attempt to facilitate the download of malicious software to the computers of the website’s visitors, the respondent had registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii)). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii) and ¶ 4(a)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <delllaptopservicegbs.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 25, 2018
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