Dell Inc. v. Vansh Kathuria
Claim Number: FA1811001817337
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Vansh Kathuria (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellcustomerssupport.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 20, 2018; the Forum received payment on November 20, 2018.
On November 21, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dellcustomerssupport.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 November 26, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 17, 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@dellcustomerssupport.com. Also on November 26, 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 December 20, 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. As a consequence of Complainant’s marketing and sales success, it and its marks have become famous in the United States and many other countries. Complainant asserts rights in the DELL mark based on registration in the United States in 1990. The mark is also registered elsewhere around the world.
Complainant alleges that the disputed domain name is confusingly similar to its DELL mark, as the domain name incorporates the famous mark DELL in its entirety; merely tacking on the generic terms “customers” and “support,” as well as a generic top-level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the DELL mark in any manner. Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to pass off as Complainant and offer computer support services that are in direct competition with services offered by Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. It intentionally seeks to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Furthermore, Respondent’s inclusion of a disclaimer does not mitigate against a finding of bad faith. Finally, Respondent had actual knowledge of Complainant rights in the DELL mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark DELL and uses it to market a wide range of computer products and services. The mark is registered around the world and it is famous.
Complainant’s rights in its marks date back to at least 1990.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving website displays Complainant’s mark and offers services that compete with those of Complainant.
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 DELL mark, as the domain name incorporates the famous mark in its entirety; merely tacking on the generic terms “customers” and “support,” as well as the gTLD “.com.” The addition of generic terms and a gTLD to a mark may not be sufficient to overcome a confusingly similar analysis per 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).). Accordingly, the Panel finds that that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its DELL mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 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 the owner of the disputed domain name as “Vansh Kathuria.” The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent fails to use the disputed domain name to make a bona fide offering of goods and services or for a legitimate or noncommercial or fair use. Instead, the disputed domain name resolves to a website which is being used to offer competing services. Specifically, the resolving website displays Complainant’s mark DELL and a blue and white color scheme, much like Complainant’s official website; the resolving website offers repair services and encourages visitors to call a phone number that is not associated with Complainant; further, Respondent refers to itself by misleading names, including “Dell Customer Support” and “Dell Support.” Use of a confusingly similar domain name to offer competing services is not a use indicative of rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). The Panel therefore finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods and services or for a legitimate or noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have 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 names.
Indeed, as already noted, Respondent attempts to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website. Such use of a domain name may be evidence of bad faith per Policy ¶ 4(b)(iii) and (iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
The Panel notes that the resolving website does contain a disclaimer. But past panels have found that even direct disclaimers do not prevent a finding of bad faith. See Citigroup Inc. v. Domain MANAGER / Domain Brokers, Case No. FA 1621817 (Forum July 13, 2015) (transferring domain name despite disclaimer attesting to a lack of affiliation with Complainant); Auxilium Pharm., Inc. v. Patel, Case No. FA 0642141 (Forum Apr. 6, 2006) (“Respondent’s use of a disclaimer on its website does not mitigate evidence of bad faith registration and use under Policy ¶ 4(a)(iii)”); AltaVista Co. v. AltaVisa, Case No. FA 0095480 (Forum Oct. 31, 2000) (finding that since a disclaimer does not, and could not, accompany the domain name, then the “domain name attracts the consumer’s initial interest and the consumer is misdirected long before he/she has the opportunity to see the disclaimer”). Accordingly, the Panel finds that the disclaimer on the resolving website does not prevent a finding of bad faith registration and use.
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the resolving website displays Complainant’s mark. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also 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.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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 <dellcustomerssupport.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: December 20, 2018
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