Dell Inc. v. Vijayan Anbalagan
Claim Number: FA1311001531184
Complainant is Dell Inc. (“Complainant”), represented by Tyson D. Smith of Pirkey Barber PLLC, Texas, USA. Respondent is Vijayan Anbalagan (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellservicesupport.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that 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 National Arbitration Forum electronically on November 22, 2013; the National Arbitration Forum received payment on November 22, 2013.
On November 22, 2013, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <dellservicesupport.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 22, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 12, 2013 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@dellservicesupport.com. Also on November 22, 2013, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On December 20, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 contends as follows:
Complainant is a world leader in computers, computer accessories, and other computer-related products and services. Complainant sells its products in over 180 countries, including India. Complainant operates its own website at <dell.com>, and it does a significant amount of business online.
Complainant has rights in the DELL mark, used in connection with computers, computer accessories, and other computer-related products and services. Complainant is the owner of registrations for the DELL mark with the United States Patent and Trademark Office (“USPTO) as well as many other registries worldwide.
Respondent’s <dellservicesupport.com> domain name is confusingly similar to Complainant’s DELL mark. The disputed domain name incorporates Complainant’s mark in its entirety while adding the generic terms “service” and “support” as well as the generic top-level domain (“gTLD”) “.com.”
Respondent does not have any rights or legitimate interests in the <dellservicesupport.com> domain name.
Respondent is not commonly known by the disputed domain name, and Complainant has not authorized Respondent to use its DELL mark in any way. Respondent’s it attempting to pass itself off as Complainant. The resolving website features Complainant’s DELL mark prominently, and includes language that would lead an Internet user to believe the disputed domain name is owned by or affiliated with Complainant. Respondent is attempting to gather Internet users’ personal information, and Complainant presumes Respondent is exploiting that information for Respondent’s commercial benefit. In the “Contact Us” section of the resolving website, Respondent provides Internet users with the opportunity to provide their name, e-mail address, and phone number.
Respondent registered and is using the <dellservicesupport.com> domain name in bad faith. Respondent has engaged in a pattern of bad faith registration and use by registering other domain names that include other notable trademarks. Complainant provides a list of WHOIS records for those domain names.
Respondent is attempting to attract and mislead Internet users for Respondent’s own commercial gain. Complainant presumes Respondent is commercially benefitting from the personal information it is collecting via the disputed domain name.
Respondent is attempting to pass itself off as Complainant. The resolving website features Complainant’s DELL mark prominently and deceives consumers into thinking that the <dellservicesupport.com> domain name is affiliated with Complainant. Respondent is attempting to collect personal information of Internet users via the “Contact Us” section of the <dellservicesupport.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds registered trademarks for its DELL mark and related trademarks with the USPTO as well with as other trademark registrars worldwide.
Respondent is not authorized to use the DELL marks.
Respondent registered the at-issue <dellservicesupport.com> domain name subsequent to when Complainant acquired rights in the DELL mark
The website referenced by the at-issue domain name features Complainant’s DELL mark and includes language that would lead an Internet user to believe the at-issue domain name is owned by, or affiliated with, Complainant.
Respondent likely uses the <dellservicesupport.com> website to attempt to inappropriately gather third party personal information for Respondent’s commercial benefit, to wit in the “Contact Us” section of the website Respondent provides website visitors with the opportunity to provide their name, e-mail address, and phone number.
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(e), 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 (Nat. Arb. 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 owns several trademark registrations with the USPTO and with other registries for its DELL mark and related marks. Complainant’s registrations with the USPTO and/or with the other recognized registries establish Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world).
Respondent’s <dellservicesupport.com> is confusingly similar to Complainant’s DELL mark as it incorporates the DELL mark in its entirety and merely adds the generic terms “service” and “support” thereto. The addition of descriptive words terms does not distinguish Respondent’s <dellservicesupport.com> domain name from Complainant’s DELL mark. The at-issue domain name is completed by appending the top-level domain “.com” to the confusingly similar second level domain name. Nevertheless, it is well settled that the addition of the top level domain name is irrelevant regarding Policy ¶ 4(a)(i) analysis. Therefore, the Panel concludes that Respondent’s < dellservicesupport.com> domain name is confusingly similar to Complainant’s mark. See Warner Bros. Entm’t Inc. v. Rana, FA 304696 (Nat. Arb. Forum Sept. 21, 2004) (finding that the addition of the generic term “collection” to Complainant’s HARRY POTTER mark failed to distinguish the domain name from the mark); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”)
Respondent lacks both rights and legitimate interests in respect of the at‑issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there is no Policy ¶4(c) circumstance from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
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 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent is not authorized to use Complainant’s DELL mark or to offer Complainant’s products or services. WHOIS information identifies “Vijayan Anbalagan” as the registrant of the at-issue domain name. However, there is no other evidence before the Panel which otherwise tends to prove that Respondent is commonly known by the disputed domain name. Therefore, the Panel finds that Respondent is not commonly known by the domain name for the purposes of Policy ¶4(c)(ii). See Yoga Works, Inc. v. Arpita, FA 155461 (Nat. Arb. Forum June 17, 2003) (finding that the respondent was not “commonly known by” the <shantiyogaworks.com> domain name despite listing its name as “Shanti Yoga Works” in its WHOIS contact information because there was “no affirmative evidence before the Panel that the respondent was ever ‘commonly known by’ the disputed domain name prior to its registration of the disputed domain name”).
Respondent is attempting to pass itself off as Complainant. Respondent’s <dellservicesupport.com> website features Complainant’s DELL mark prominently, and includes language that is likely to lead website visitors to believe the at-issue domain name is owned by or affiliated with Complainant. Using the domain name to address a website that gives the false impression of Complainant’s affiliation with such website constitutes an attempt by Respondent to pass itself off as the Complainant and is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). The Panel’s conclusion is likewise when considering the evidence indicating that Respondent is attempting to collect its website’s visitors’ personal information ostensibly to exploit such information for its own benefit. See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was 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) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website); see also Homer TLC, Inc. v. Seed of Abraham Christian School, FA 1358569 (Nat. Arb. Forum Jan. 3, 2011) (determining that the respondent lacks rights and legitimate interests in the <thehomedepotgardenclub.com> domain name because the respondent attempted to acquire the personal information of Internet users accessing the resolving website).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶4(a)(ii).
The at‑issue domain name was registered and is being used in bad faith. As discussed below Policy ¶4(b) bad faith circumstances are present and there is non-Policy ¶4(b) evidence from which the Panel may also conclude that Respondent acted in bad faith under Policy ¶4(a)(iii).
As noted above, Respondent attempts to attract and mislead its website visitors for its own commercial gain and Respondent is likely benefitting from the personal information it collects via the “Contact Us” section of its <dellservicesupport.com> website. These circumstances demonstrate Respondent’s bad faith registration and use of the domain name under Policy Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
As further noted above, Respondent is attempting to pass itself off as Complainant. Thereby Respondent demonstrates its bad faith under Policy ¶ 4(b)(iii).See Am. Int’l Group, Inc. v. Busby, FA 156251 (Nat. Arb. Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark.”)
Finally, Respondent’s attempt to collect certain personal information from its website visitors via the “Contact Us” section of the <dellservicesupport.com> website constitutes a phishing scheme and further suggests Respondent’s bad faith under Policy ¶ 4(a)(iii). See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004), (defining phishing as ““a practice that is intended to defraud consumers into revealing personal and proprietary information.”; see also Australia & New Zealand Banking Group Ltd. v. Kim, FA 1366558 (Nat. Arb. Forum Feb. 18, 2011) (finding bad faith registration and use when the respondent’s disputed domain name resolved to a website that promoted a phishing scheme).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellservicesupport.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 30, 2013
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