Dell Inc. v. karan sharma
Claim Number: FA1704001725233
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is karan sharma (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delldc.tech>, (‘the Domain Name’) registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne of Palmer Biggs IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 4, 2017; the Forum received payment on April 5, 2017.
On April 5, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <delldc.tech> 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 April 6, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 26, 2017 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@delldc.tech. Also on April 6, 2017, 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 May 2, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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's contentions can be summarised as follows:
Complainant is a world leader in computer related products and services. It owns the registered trade mark DELL.
The Domain Name is confusingly similar to the DELL mark incorporating it in its entirety, tacking on the letters ‘DC’ likely to be perceived as a reference to Complainant’s power supply products. The top level domain .tech simply serves to strengthen the association with Complainant due to Complainant’s reputation in the technology industry.
Respondent has no rights or legitimate interests in the Domain Name. It is not used for a bona fide offering of goods and services, rather it is used in connection with a web site that may deceive consumers into thinking that Respondent or Respondent’s business is Complainant’s or connected with it. The web site at the Domain Name is used to distribute remote connection software, malware or both. This web site uses a blue and white colour scheme similar to Complainant’s official software, dominantly displays ‘Support Softwares’ at the top of the home page and provides a number of links with titles mirroring the names of several well known remote connection software programs which consumers will think are approved or endorsed by Complainant.
Complainant has not licensed Respondent to use its DELL mark. Respondent is not commonly known by the Domain Name. Respondent is not making a legitimate non commercial or fair use of the Domain Name.
The use made of the website shows Respondent knew of Complainant’s famous DELL mark and rights. Respondent is intentionally attempting to attract for commercial gain Internet users to its web site by creating a likelihood of confusion with Complainant’s mark as to the source, affiliation or endorsement of Complainant’s web site. There is potential use to gather confidential information and distribute malware.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is the owner of, inter alia, the registered trade mark DELL for computers in the USA with first use recorded as 1987.
The Domain Name registered in 2016 offers software competing with that 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.”).
Identical or Confusingly Similar
The Domain Name consists of Complainant's DELL mark (which is registered in USA for computer related goods and services with first use in commerce recorded as 1987), the letters ‘DC’ and the gTLD .tech. Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underling mark held by Complainant). The Panel agrees that the addition of the generic term ‘dc’ (which may be interpreted as a reference to a power supply or the city Washington DC) to Complainant's mark does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy. In fact it may add to confusion as Complainant offers power supply products and is based in the USA.
The gTLD .tech does not serve to distinguish the Domain Name from the DELL mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark). .tech is not part of Complainant’s trade mark, but given that it may be seen as a descriptive term relating to the technology industry it may add to any confusion.
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent uses Complainant’s famous DELL name. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant contends that the site is set up for commercial benefit to compete with Complainant using the latter's intellectual property rights. Respondent is using the site in competition with Complainant to offer competing software using a similar colour scheme to Complainant’s official web site. It does not make it clear that there is no commercial connection with Complainant. This use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Kmart of Mich., v. Cone, FA 655014 (Forum April 25, 2006) (The panel found the respondent’s attempt to mimic Complainant was not a bona fide offering of goods and service nor a legitimate non commercial or fair use).
As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
Complainant also alleges that Respondent's use of the site attached to the Domain Name is commercial and it is using it to make a profit by competing with Complainant in a confusing and deceptive manner. In the opinion of the Panel, the use made of the Domain Name in relation to the site is confusing and deceptive in that visitors to the site might reasonably believe it is connected to or approved by Complainant, as it offers competing products to Complainant under a Domain Name containing Complainant’s DELL mark and a similar colour scheme. This use on Respondent's web site in relation to software shows that Respondent is aware of Complainant and its products. Accordingly, the Panel holds that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of Complainant and is disruptive. For the latter, see DatingDirect.com Ltd v Aston, FA 593977 (ForumDec 28, 2005) (Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy 4 (b)(iii).
As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <delldc.tech> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 3, 2017
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