Dell Inc. v. Dell Tech Support / Dell Tech Support Phone Number / SNAB Corporation
Claim Number: FA1903001832968
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Dell Tech Support / Dell Tech Support Phone Number / SNAB Corporation (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.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 March 7, 2019; the Forum received payment on March 7, 2019.
On March 7, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 March 8, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 2019 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@delltechsupportphonenumber.com, postmaster@dellservicecentrehyderabad.com. Also on March 8, 2019, 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 March 31, 2019, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant, Dell Inc., is a world leader in computers, computer accessories, and other computer-related products and services.
Complainant has rights in the DELL mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.com> domain names are confusingly similar to Complainant’s mark because Respondent wholly incorporates the DELL mark in each domain name, adds the generic terms “tech”, “support”, “phone”, and “number” to the <delltechsupportphonenumber.com> domain name, adds the generic terms “service”, “centre”, and “hyderabad” to the <dellservicecentrehyderabad.com> domain name, and adds the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.com> domain names because Respondent is not commonly known by the disputed domain names and is not authorized or permitted to use Complainant’s mark in any fashion. Additionally, 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. Rather, Respondent uses the <delltechsupportphonenumber.com> domain name to redirect users to <dellservicecentrehyderabad.com>, which Respondent uses to pass off as Complainant to offer competing services. Further, Respondent uses the domain names to phish for <dellservicecentrehyderabad.com> website users’ personal information.
Respondent registered and uses the <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.com> domain names in bad faith. Respondent attempts to attract, for commercial gain, users to its website, where Respondent passes off as Complainant in order to offer competing services. Further, Respondent phishes for users’ personal information. Respondent’s use of disclaimer does not mitigate user confusion. Moreover, 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 <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.com> domain names to pose as Complainant, to purport to provide support for Complainant’s products, and to phish for private information.
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.”).
Each 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 names contains Complainant’s entire DELL trademark with either the descriptive terms “tech service support phone number” or the descriptive/geographic terms “service centre Hyderabad” appended thereto, all followed by the top-level domain name “.com”. The differences between the at-issue domain names and Complainant’s DELL trademark are insufficient to distinguish each from the other for the purpose of the Policy. In fact, the domain names’ included descriptive terms suggest Complainant’s service related business as well as where Complainant may do business (Hyderabad). The included terms thus add to any confusion between each domain name and Complainant’s trademark. Therefore, the Panel finds that, pursuant to Policy ¶ 4(a)(i), the <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.com> domain names are each confusingly similar to Complainant’s DELL trademark. See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”).
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 each 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 either at‑issue domain name.
WHOIS information for the at-issue domain names identifies the domain names’ registrant as “Dell Tech Support / Dell Tech Support Phone Number / SNAB Corporation” and the record contains no evidence that otherwise tends to prove that Respondent is commonly known by either <delltechsupportphonenumber.com> or <dellservicecentrehyderabad.com>. The Panel therefore concludes that Respondent is not commonly known by the <delltechsupportphonenumber.com> or <dellservicecentrehyderabad.com> domain names 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 <delltechsupportphonenumber.com> domain name to direct traffic to its <dellservicecentrehyderabad.com> domain name where there is a website exposing visitors to Respondent’s purported computer repair services. The website poses to appear as if it were sponsored by Complainant via its confusingly similar domain name address and additionally by the website’s misappropriation of the look and feel of Complainant’s official website. Respondent’s ruse goes so far as to even use Complainant’s logo for the imposter website’s favicon. Through such deception, Respondent attempts to pass itself off as Complainant presumably for commercial gain. 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, 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 each at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain names were each 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 <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.com> domain names to pass itself off as Complainant. Respondent, through the at-issue domain names and copied elements of Complainant’s official website containing Complainant’s intellectual property, creates the false impression that Respondent’s website is sponsored by Complainant when it is not. Respondent’s use of the confusingly similar domain names so that Respondent may 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.”).
Second, Respondent’s use of the at-issue domain names to compete with Complainant also indicates Respondent’s bad faith pursuant to Policy ¶ 4(b)(iii). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)).
Third, Respondent registered and uses the <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.com> domain names in bad faith because Respondent’s delltechsupportphonenumber.com> domain name redirects internet users to Respondent’s <dellservicecentrehyderabad.com> website to facilitate a phishing scheme. The website, as noted elsewhere, is dressed to appear as if it were Complainant’s official website and designed so that Respondent can fraudulently obtain personal information from website visitors. Pretending to be associated with Complainant, Respondent’s website contains forms that collect proprietary personal information from visitors interested in Respondent’s services. Such information includes names, phone numbers and email addresses. Respondent’s phishing demonstrates bad faith generally under Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”).
Finally, Respondent registered the <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.com> domain names knowing that Complainant had trademark rights in the DELL mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s DELL trademark and from Respondent’s use of the domain names and imposter website to pass itself off as Complainant. It is thus clear that Respondent intentionally registered the at-issue domain names to improperly exploit their trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.com> domain names 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 <delltechsupportphonenumber.com> and <dellservicecentrehyderabad.com> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 31, 2019
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