Dell Inc. v. Ashish Gupta / Rohan Agrawal / Gaurav Kumar / Pandaje Technical Services Pvt Ltd.
Claim Number: FA1708001746726
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Ashish Gupta / Rohan Agrawal / Gaurav Kumar / Pandaje Technical Services Pvt Ltd. (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dellsupportphonenumber.com>, <delltechsupportnumber.com>, and <delltechnicalsupportphonenumbers.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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 29, 2017; the Forum received payment on August 29, 2017.
On August 31, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dellsupportphonenumber.com>, <delltechsupportnumber.com>, and <delltechnicalsupportphonenumbers.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 September 8, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 28, 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@dellsupportphonenumber.com, postmaster@delltechsupportnumber.com, postmaster@delltechnicalsupportphonenumbers.com. Also on September 8, 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 October 10, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has registered its mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,616,571, registered October 9, 1990). Respondent’s <dellsupportphonenumber.com>, <delltechsupportnumber.com>, and <delltechnicalsupportphonenumbers.com> are confusingly similar to Complainant’s DELL mark because they incorporated the mark in its entirety, tack on generic terms “support phone number,” “technical support phone numbers,” or “tech support number,” and attach a “.com” generic top-level domain (“gTLD”).
ii) Respondent has no rights or legitimate interests in the <dellsupportphonenumber.com>, <delltechsupportnumber.com>, or <delltechnicalsupportphonenumbers.com> domain names. Respondent is not commonly known by the disputed domain names. Respondent has not made any demonstrable preparations to use the domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. In fact, Respondent’s sites encourage users to call “Dell Computer and Recovery Customer Support Number,” a number which is not associated with Complainant according to screenshots of disputed domain names Complainant has submitted.
iii) Respondent has registered and used the <dellsupportphonenumber.com>, <delltechsupportnumber.com>, and <delltechnicalsupportphonenumbers.com> domain names in bad faith. Respondent’s multiple registrations are evidence of a pattern of bad faith registration and use of Complainant’s marks. Respondent’s disputed domain names intentionally attempt to attract Internet users for commercial gain by creating a likelihood of confusion as to source, sponsorship, affiliation, or endorsement of the material on the resolving websites. Respondent’s disputed domain name displays the DELL marks and purports to offer customer recovery and help services similar to that of Complainant’s services. Respondent registered the disputed domain names with actual knowledge of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Panel notes that <dellsupportphonenumber.com> was created on November 06, 2015; <delltechsupportnumber.com> was created October 10, 2016; and <delltechnicalsupportphonenumbers.com> was created January 6, 2017.
Complainant established that it had rights in the mark contained in the disputed domain names. Each of the disputed domain names is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain names.
Respondent registered and used the disputed domain names 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."
Preliminary Issue – Multiple Respondents
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant contends that the format of the three resolving websites is very similar, including a large rotating display on the homepages and the use of similar language and phrases. For example, the “Refund Policy” pages are nearly identical. Moreover, Complainant recently prevailed in a UDRP against the registrant of two similar domain names hosted nearly identical websites.
The Panel determines that all of the disputed domain names are commonly owned/controlled by a single Respondent who is using multiple aliases.
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 claims right in the DELL marks due to multiple registrations with the USPTO. (e.g., Reg. No. 1,616,571, registered October 9, 1990). USPTO registrations are sufficient to demonstrate rights in a mark. See Target Brands, Inc. v. jennifer beyer, FA 1738027 (Forum July 31, 2017) ("Complainant has rights in its TARGET service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the United States Patent and Trademark Office (“USPTO”).”). Therefore, the Panel finds Complainant has satisfied Policy ¶ 4(a)(i) with respect to rights in the mark.
Next, Complainant contends Respondent’s <dellsupportphonenumber.com>, <delltechsupportnumber.com>, and <delltechnicalsupportphonenumbers.com> are confusingly similar to the DELL mark. The mere addition of generic terms and attaching a “.com” gTLD” are insufficient to create distinction between the mark and disputed domain names. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). Here, Respondent took the entire DELL mark, added generic terms “support phone number,” “tech support number,” or “technical support phone numbers” to the mark. Respondent’s attachment of the “.com” is irrelevant for the analysis. Therefore, the Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006)
(“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain
names.”).
Complainant asserts Respondent is not commonly known by the <dellsupportphonenumber.com>, <delltechsupportnumber.com>, or <delltechnicalsupportphonenumbers.com> domain names, as Respondent is not commonly known by any of the domain names. A respondent may be found to lack rights and legitimate interests in a mark where there is no evidence in the record to suggest Respondent is known by the disputed domain names. See St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name). Here, the Panel notes the WHOIS information for <dellsupportphonenumber.com>, <delltechsupportnumber.com>, and <delltechnicalsupportphonenumbers.com> names “Gaurav Kumar,” “Rohan Agrawal,” and “Ashish Gupta,” respectively. Complainant asserts Respondent is not commonly known by the disputed domain names. The Panel finds Complainant has satisfied Policy ¶ 4(c)(ii).
Next, Complainant contends Respondent is not using <dellsupportphonenumber.com>, <delltechsupportnumber.com>, or <delltechnicalsupportphonenumbers.com> to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant argues Respondent intention to divert users from Complainant’s services cannot serve as a right or legitimate interest in the disputed domain names. See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug.21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] 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).”). In this case, Respondent’s sites purport to offer customer tech support by providing several phone numbers users can call according to printouts from web pages held by Respondent Complainant has submitted. Complainant states none of these numbers are associated with the DELL mark or business. Therefore, the Panel finds Complainant has satisfied Policy ¶ 4(c)(i) and (iii).
Respondent registered and used <dellsupportphonenumber.com>, <delltechsupportnumber.com>, and <delltechnicalsupportphonenumbers.com> in bad faith because Respondent’s multiple registrations are evidence of a pattern of bad faith registration and use of Complainant’s marks. See Radisson Hotels Internation, Inc. v. Yue Mei Wang / Wang Yue Mei aka Pei Jun Gan / Gan Pei Jun / Jun Yu He / He Jun Yu / Denliyan, FA1504001615349 (Forum June 1, 2015) (“The Panel agrees that Respondent’s registration of the <radissonbluplazachongqing.com>, <radissonbluchongqingshapingba.com>,<radissonplazahoteltianjin.com>, and <radissonbluhotelshanghai.com> domain names, which all infringe on Complainant’s mark, constitutes bad faith under Policy ¶ 4(b)(ii).”). Here, Respondent has registered at least three domain names encompassing Complainant’s DELL mark. Complainant also contends that it is likely Respondent is the same respondent in a previous case where Complainant prevailed. The Panel finds that Respondent has engaged in a pattern of bad faith registration pursuant Policy ¶ 4(b)(ii).
Additionally, Complainant contends that Respondent’s disputed domain names intentionally attempt to attract, for commercial gain, by creating a likelihood of confusion as to source, sponsorship, affiliation, or endorsement. Using a confusingly similar domain name to mislead Internet users can demonstrate bad faith registration and use. See Red Bull GmbH v. Gutch, D2000-0766 (WIPO Sept. 21, 2000) (finding that the respondent’s expected use of the domain name <redbull.org> would lead people to believe that the domain name was connected with the complainant, and thus is the equivalent to bad faith use). Here, Respondent is attempting to gather Internet users’ personal information after falsely creating an association with Complainant. The Panel agrees with Complainant and finds that Respondent registered and uses the disputed domain names in bad faith pursuant to Policy ¶ 4(b)(iv).
Further, Respondent’s disputed domain name displayed the DELL marks and purports to offer customer recovery and help services similar to that of Complainant’s services. The use of confusingly similar domain names to promote services that compete with those of Complainant is further evidence of Respondent’s bad faith. See Homer TLC, Inc. v. Above.com Domain Privacy, Case No. FA 1579386 (Forum October 13, 2014) (finding that registration of a domain name that featured Complainant’s well-known mark “together with the use of the domain name to promote competing goods or services in a manner designed to exploit confusion with Complainant and its mark, is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy”).
Finally, Complainant argues Respondent must have had actual knowledge of Complainant’s DELL mark and business because Respondent registered the disputed domain names using an added generic terms coupled with
Complainant’s DELL mark, which is famous and familiar to countless consumers. Actual knowledge may be proven through a totality of circumstances. See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.). While Complainant provides evidence of Respondent’s use to confuse Internet users of the affiliation of the domain names, and alleges the domain names include Complainant’s mark in its entirety within the disputed domain names, the Panel agrees that actual knowledge exists—which supports a finding of bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellsupportphonenumber.com>, <delltechsupportnumber.com>, and <delltechnicalsupportphonenumbers.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: October 16, 2017
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page