Dell Inc. v. Domain Admin / Hush Whois Protection Ltd.
Claim Number: FA1811001818744
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Domain Admin / Hush Whois Protection Ltd. (“Respondent”), Seychelles.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <insidedell.com>, registered with Key-Systems GmbH.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 29, 2018; the Forum received payment on November 29, 2018.
On December 3, 2018, Key-Systems GmbH confirmed by e-mail to the Forum that the <insidedell.com> domain name is registered with Key-Systems GmbH and that Respondent is the current registrant of the name. Key-Systems GmbH has verified that Respondent is bound by the Key-Systems GmbH 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 December 3, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 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@insidedell.com. Also on December 3, 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 30, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K.. McCotter, Jr. (Ret.) 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, Dell Inc., is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has rights in the DELL marks based on registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,860,272, registered Oct. 25, 1994). Respondent’s <insidedell.com> domain name is confusingly similar to Complainant’s DELL mark, as the domain name incorporates the DELL mark in its entirety, while merely adding the generic term “inside” and a generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <insidedell.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the DELL mark. 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, the disputed domain name displays a parking page featuring pay-per-click links that reference Complainant but in fact lead to third-party advertisers unaffiliated with Dell. Further, Respondent offers the domain for sale for $2,388.00.
Respondent registered and is using the <insidedell.com> domain name in bad faith. Respondent offers to sell the disputed domain name for more than out-of-pocket costs. Additionally, Respondent attempts to attract, for commercial gain, users to the disputed domain name where it profits from unrelated and competing, pay-per-click links. Finally, Respondent had actual knowledge of Complainant’s rights in the DELL marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Dell Inc., is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has rights in the DELL marks based on registration with the USPTO (e.g. Reg. No. 1,860,272, registered Oct. 25, 1994). Respondent’s <insidedell.com> domain name is confusingly similar to Complainant’s DELL mark.
Respondent registered <insidedell.com> domain name on February 10, 2014.
Respondent has no rights or legitimate interests in the <insidedell.com> domain name. The disputed domain name displays a parking page featuring pay-per-click links that reference Complainant but in fact lead to third-party advertisers unaffiliated with Dell. Further, Respondent offers the domain for sale for $2,388.00.
Respondent registered and is using the <insidedell.com> domain name 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:
(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.”).
Complainant has rights in the DELL mark under Policy ¶ 4(a)(i) based upon registration of the mark with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <insidedell.com> domain name is confusingly similar to the DELL mark. The domain name incorporates the famous mark DELL in its entirety, merely tacking on the generic term “inside” and adding generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in the <insidedell.com> domain name. Complainant has not authorized Respondent to use the DELL mark. The WHOIS information of record identifies the registrant of the disputed domain name as “Domain Admin.” Therefore, Respondent has not been commonly known by the <insidedell.com> domain name under Policy ¶ 4(c)(ii).
Respondent has failed to use the <insidedell.com> domain name to make a bona fide offering of goods and services or for a legitimate or noncommercial or fair use. The domain name resolves to a website which is being used to obtain click-through revenue by linking to competitors’ websites. Use of a domain name to host a page for third-party links fails to show rights or legitimate interests per Policy ¶¶ 4(c)(i) or (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations action 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.”); see also Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees).
Respondent’s lack of rights and legitimate interests in the <insidedell.com> domain name is also shown by its offer to sell the domain name. Offering a domain name for sale may be evidence of a lack of rights or legitimate interests in a domain name under Policy ¶¶ 4(c)(i) or (iii). See Twentieth Century Fox Film Corporation v. Diego Ossa, FA1501001602016 (Forum Feb. 26, 2015) (“The Resolving parked page advertises the sale of the domain name with the message ‘Would you like to buy this domain?’ The Panel accepts this offer as demonstrative of Respondent’s willingness to sell the disputed domain name, and finds that such behavior provides additional evidence that Respondent lacks rights or legitimate interests in the disputed domain name.”). Complainant provides screenshots of the disputed domain name that is offered to sell for $2,388.
Respondent’s bad faith is shown by its offer of the domain for sale bad faith under Policy ¶ 4(b)(i). See Citigroup Inc. v. Kevin Goodman, FA1506001623939 (Forum July 11, 2015) (concluding that the evidence showed that the respondent registered the disputed domain name primarily for the purpose of transferring it for a profit and demonstrates the respondent’s bad faith registration and use of the disputed domain name pursuant to Policy ¶ 4(b)(i).).
Respondent’s bad faith under Policy ¶ 4(b)(iv) is shown by use of the domain to host competing hyperlinks. See Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA1501001598657 (Forum Feb. 20, 2015) (“competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv).”).
Finally, Respondent’s bad faith under Policy ¶ 4(a)(iii) is shown by its actual knowledge of Complainant’s rights in the DELL marks prior to registration. See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum Feb. 25, 2014) (finding that the respondent had actual knowledge of the complainant and its rights in the mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where the respondent was using the disputed domain name to purposely host links related to the complainant’s field of operation).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <insidedell.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles k. McCotter, Jr. (Ret.), Panelist
Dated: January 8, 2019
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