Dell Inc. v. Indra Armansyah
Claim Number: FA1711001757123
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Indra Armansyah (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <emc.host>, registered with NameCheap, Inc..
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 3, 2017; the Forum received payment on November 3, 2017.
On November 3, 2017, NameCheap, Inc. confirmed by e-mail to the Forum that the <emc.host> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 27, 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@emc.host. Also on November 7, 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 November 28, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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. 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
EMC Corporation has used the well-known EMC mark for many years for servers, data storage, software, and various related products. Complainant, Dell Inc., recently acquired EMC Corporation and incorporated it as a wholly-owned subsidiary. As a result, Complainant owns many trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the EMC mark, many of which are incontestable (e.g. Reg. No. 2,142,157 registered Mar. 10, 1998). Respondent’s <emc.host> domain name is identical or confusingly similar to Complainant’s mark because it consists entirely of the EMC mark and the “.host” generic top-level domain (“gTLD”). Any potential confusion is enhanced, as the “.host” gTLD is related to and descriptive of Complainant’s business.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not been authorized, licensed, or permitted by Complainant to use the EMC mark, and is not commonly known by the disputed domain name. Respondent has not used, nor made any demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services. Rather, the disputed domain name is a pay-per-click parked page, displaying links related to Complainant and its products and services. Further, Respondent lists the disputed domain name for sale as the parked page advertises “the owner of emc.host is offering it for sale for an asking price of 5000 USD!”
Respondent registered and uses the <emc.host> domain in bad faith. Respondent offers to sell the disputed domain name for “5000 USD,” in excess of the out-of-pocket costs of registration. Additionally, Respondent’s use of the domain name in connection with a pay-per-click parking page demonstrates its bad faith. Further, Respondent knew of Complainant’s well-known EMC mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
EMC Corporation has used the well-known EMC mark for many years for servers, data storage, software, and various related products. Complainant, Dell Inc., recently acquired EMC Corporation and incorporated it as a wholly-owned subsidiary. As a result, Complainant has rights in the EMC mark through registrations with the USPTO, many of which are incontestable (e.g. Reg. No. 2,142,157 registered Mar. 10, 1998). Respondent’s is identical to Complainant’s mark.
Respondent, Indra Armansyah, registered <emc.host> on October 17, 2017.
Respondent has no rights or legitimate interests in the <emc.host> domain name. The disputed domain name is a pay-per-click parked page, displaying links related to Complainant and its products and services.
Respondent registered and uses the <emc.host> domain 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."
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.”).
Respondent’s <emc.host> domain name is identical to the EMC mark because the mark is incorporated entirely in the domain name, and the “.host” gTLD is added.
Respondent is not commonly known by the <emc.host> domain name. Complainant has not authorized, licensed, or permitted Respondent to use the EMC mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information for the domain name lists “Indra Armansyah.” See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name).
Respondent has failed to use the <emc.host> domain name in connection with a bona fide offering of goods or services or a legitimate non-commercial or fair use. See Kohler Co. v xi long chen, FA 1737910 (Forum Aug. 4, 2017) (”Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. Respondent’s <kohler-corporation.com> resolves to an inactive webpage displaying the message “website coming soon!”). Respondent’s use of the <emc.host> domain name to host a pay-per-click parking page does not support rights or legitimate interests in the domain name per Policy ¶¶ 4(c)(i) or (iii). See SimScale GmbH v. Oliver Sharp, FA1401001537384 (Forum Feb. 3, 2014) (holding that the respondent’s “use of the disputed domain name to promote links to unrelated third parties is not protected as a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Respondent offers the disputed domain for sale to the public in excess of the out-of-pocket costs of registration. Respondent’s <emc.host> domain advertises that “the owner of emc.host is offering it for sale for an asking price of 5000 USD!” A respondent’s offer of a disputed domain name for sale for an amount in excess of the out-of-pocket registration costs supports a finding that respondent lacks rights and legitimate interests in the domain. See AOL Inc. v. YourJungle Privacy Protection Service aka Whois Agent, FA1312001533324 (Forum Jan. 17, 2014) (“Respondent has offered the <aoljobsweek.com> domain name for sale to the general public, which demonstrates that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”).
Respondent’s use of the domain name in connection with a pay-per-click parking page is evidence of bad faith under Policy ¶ 4(b)(iv). See The Toronto-Dominion Bank v. Alexander Ginzburg, FA 1746026 (Forum Sep. 23, 2017) (“Respondent uses the at-issue domain name to address a webpage which presents its visitors with pay-per-click links. Using the confusingly similar domain name in this manner demonstrates Respondent’s bad faith registration and use of the <tdbank-claims.com> domain name under Policy ¶ 4(b)(iv)”).
Respondent’s offering of the <emc.host> domain name for sale shows Respondent registered and uses it in bad faith under Policy ¶ 4(b)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA1506001625332 (Forum July 17, 2015) (“A respondent’s general offer to sell a disputed domain name for an excess of out-of-pocket costs is evidence of bad faith under Policy ¶ 4(b)(i).”).
Respondent had actual knowledge of Complainant's rights in the EMC mark. Therefore, Respondent registered the <emc.host> domain name in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <emc.host> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 7, 2017
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