Dell Inc. v. Tagoon Prappre c/o Epidemiology Unit
Claim Number: FA1609001695557
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Tagoon Prappre c/o Epidemiology Unit (“Respondent”), Thailand.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alienwarestation.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Hon. Karl V. Fink as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 27, 2016; the Forum received payment on September 27, 2016.
On September 28, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <alienwarestation.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 28, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 18, 2016 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@alienwarestation.com. Also on September 28, 2016, 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.
A timely Response was received and determined to be complete on October 17, 2016.
On October 24, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant offers custom computer gaming hardware, including laptops, desktops, and computer peripherals using the ALIENWARE mark. Complainant owns several United States Patent and Trademark Office (“USPTO”) registrations for the ALIENWARE mark, demonstrating rights therein. Respondent’s <alienwarestation.com> is confusingly similar to the ALIENWARE mark because the mark is incorporated in its entirety, while merely appending the generic term “station” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in or to <alienwarestation.com>. Respondent is not an authorized retailer of Complainant’s computer products or services. In addition, Complainant has not licensed or otherwise permitted Respondent to use its ALIENWARE Marks, or any other mark owned by Complainant, and Respondent is not commonly known by the domain name. Further, Respondent uses the domain name to prominently display the logo “ALIENWARE STATION” along with Complainant’s registered alien head logo, along with pictures of Complainant’s products and refers to itself as an “Alienware Dealer.” This use competes with Complainant, and Respondent likely profits because it includes a link to visitors’ “Cart” and icons displaying “Visa,” “MasterCard,” and “PayPal.” Such use is not a bona fide offering of goods or services or any legitimate noncommercial or fair use.
Respondent registered and uses <alienwarestation.com> in bad faith. Respondent profits from the likelihood of confusion associated with the domain name, conduct memorialized and proscribed by Policy ¶ 4(b)(iv). Further, given Respondent’s clear incorporation of Complainant’s marks and likeness on the resolving website, as well as the purported offering of competing goods/services, Respondent had actual or constructive knowledge of Complainant and the ALIENWARE mark when registering and subsequently using the disputed domain name.
B. Respondent
Respondent had a discussion in August with an agent of Complainant regarding the possibility of becoming an authorized reseller of Complainant’s products. Respondent was preparing <alienwarestation.com> as a prototype—in good faith—to engage once authorization went through. Respondent has since deleted all content.
Preliminary Issue: Consent to Transfer
Respondent consents to transfer <alienwarestation.com> to Complainant. Respondent stated under § 6 of the Response, “I agree to comply with the complainant’s request and will issue transfer or delete this domain name immediately.” However, after the initiation of this proceeding, PDR Ltd. d/b/a PublicDomainRegistry.com placed a hold on Respondent’s account and therefore Respondent cannot transfer the disputed domain name while this proceeding is still pending. The Panel finds that in a circumstance such as this, where Respondent has not contested the transfer of the disputed domain name but instead agrees to transfer the domain name in question to Complainant, the Panel will forego the traditional UDRP analysis and order an immediate transfer of <alienwarestation.com>. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
The Respondent having consented to the transfer of the <alienwarestation.com> domain name, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alienwarestation.com> domain name be TRANSFERRED from Respondent to Complainant
_______________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: November 5, 2016
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