Dell Inc. v. Adeel Sabir / Adeel Khusro / MSDEL LLC
Claim Number: FA1711001757163
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Adeel Sabir / Adeel Khusro / MSDEL LLC (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dellcustomerservicenumbers.com> and <msdelcom.net>, 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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 3, 2017; the Forum received payment on November 3, 2017.
On November 6, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dellcustomerservicenumbers.com> and <msdelcom.net> 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 November 8, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 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@dellcustomerservicenumbers.com, postmaster@msdelcom.net. Also on November 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 December 1, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant registered the DELL mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,616,571, registered Oct. 9, 1990). Respondent’s <dellcustomerservicenumbers.com> and <msdelcom.net> domain names[1] are confusingly similar to Complainant’s mark as <dellcustomerservicenumbers.com> wholly appropriates the mark, appends the descriptive terms “customer” “service” and “numbers” as well as the “.com” generic top-level-domain (“gTLD”), while <msdelcom.net> removes one “l” from the DELL mark and appends the generic terms “ms” and “com” as well as the “.net” gTLD.
2. Respondent has no rights or legitimate interests in the <dellcustomerservicenumbers.com> and <msdelcom.net> domain names. Respondent is not commonly known by the domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the DELL mark.
3. Respondent also does not use the domain names in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent attempts to pass off as Complainant to phish for Internet users’ information for Respondent’s commercial gain.
4. Respondent registered and uses the <dellcustomerservicenumbers.com> and <msdelcom.net> domain names in bad faith. Respondent exhibits a pattern of bad faith registration and use. Respondent intentionally attracts, for commercial gain, Internet users otherwise seeking Complainant or Complainant’s business by creating a likelihood of confusion with Complainant to disrupt and compete with Complainant’s business.
5. Respondent attempts to pass off as Complainant to engage in a phishing scheme.
6. Respondent had actual knowledge of Complainant’s rights in the DELL mark prior to registration of the domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the DELL mark. Respondent’s domain names are confusingly similar to Complainant’s DELL mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <dellcustomerservicenumbers.com> and <msdelcom.net> domain names and that Respondent registered and uses the 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."
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 has rights in the DELL mark based upon registration with the USPTO (e.g. Reg. No. 1,616,571, registered Oct. 9, 1990). Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark.”). Accordingly, the Panel finds that Complainant has established rights in the DELL mark.
Next, Complainant argues that Respondent’s <dellcustomerservicenumbers.com> and <msdelcom.net> domain names are confusingly similar to Complainant’s mark as confusingly similar to Complainant’s mark. The <dellcustomerservicenumbers.com> domain name wholly appropriates the mark, appends the generic terms “customer” “service” and “numbers” as well as the “.com” generic top-level-domain (“gTLD”). The <msdelcom.net> domain name removes one “l” from the DELL mark and appends the generic terms “ms” and “com” as well as the “.net” gTLD. Similar changes in a registered mark have failed to sufficiently distinguish domain names for the purposes of Policy ¶4(a)(i). 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).). The Panel therefore finds that the <dellcustomerservicenumbers.com> and <msdelcom.net> domain names are confusingly similar to the DELL mark under Policy ¶4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the dellcustomerservicenumbers.com> and <msdelcom.net> domain names. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant contends that Respondent has no rights or legitimate interests in the <dellcustomerservicenumbers.com> and <msdelcom.net> domain names. Where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The WHOIS information of record identifies “Adeel Sabir / MSDEL LLC” as the registrant of the <dellcustomerservicenumbers.com> domain name and “Adeel Khusro / MSDEL LLC” as the registrant of the <msdelcom.net> domain name. Complainant asserts, without contradiction, that no evidence exists to show that Respondent has ever been legitimately known by the DELL 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). Complainant further alleges, without contradiction, that Respondent has never been legitimately affiliated with Complainant, has never been known by the <dellcustomerservicenumbers.com> and <msdelcom.net> domain names prior to their registration, and Complainant has not given Respondent permission to use the domain names. Accordingly, the Panel agrees that Respondent is not commonly known by the <dellcustomerservicenumbers.com> and <msdelcom.net> domain names under Policy ¶ 4(c)(ii).
Complainant argues that Respondent does not use the domain names in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use because Respondent engages in a phishing scheme to obtain information from users. Phishing schemes show a failure to provide a bona fide offering of goods or services or legitimate noncommercial or fair use. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum Mar. 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information). Complainant has provided screenshot evidence of a “Let’s Talk Business” form on the resolving webpage that purports to gather personal information from Internet users visiting the site. Further, there is another “Contact Us” area that allows for “mobile no.,” “name,” and “email.” Thus, the Panel therefore finds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant has provided evidence that Respondent has registered multiple domain names that infringe on the DELL mark. Registration of multiple domain names that infringe on a complainant’s rights indicates bad faith pursuant to Policy ¶ 4(b)(ii). 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 [multiple] domain names, which all infringe on Complainant’s mark, constitutes bad faith under Policy ¶ 4(b)(ii).”). The Panel agrees with Complainant and finds Respondent registered the <dellcustomerservicenumbers.com> and <msdelcom.net> domain names in bad faith.
Next, Complainant argues Respondent intentionally attracts, for commercial gain, Internet users otherwise seeking Complainant or Complainant’s business by creating a likelihood of confusion with Complainant to disrupt and compete with Complainant’s business. This has been found to constitute bad faith per Policy ¶ 4(b)(iii) & (iv). See Disney Enters., Inc. v. Noel, FA 198805 (Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”). Complainant has provided screenshots of the resolving websites for the <dellcustomerservicenumbers.com> and <msdelcom.net> domain names in which Complainant has shown Respondent uses Complainant’s colors and designs presumably in an attempt to attract Internet users who believe Respondent is affiliated with or an agent of Complainant. The Panel therefore finds Respondent acted in bad faith per Policy ¶ 4(b)(iii) & (iv).
Complainant has provided evidence that Respondent attempts to pass off as Complainant to engage in a phishing scheme. This has been found to indicate bad faith per Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”). Respondent attempts to use a “Contact Us” form on the resolving websites in order to collect personal information from Internet users. The Panel finds Respondent’s actions amount to bad faith activity per Policy ¶ 4(a)(iii).
Last, Complainant argues Respondent had actual knowledge of Complainant’s rights in the DELL mark prior to registration of the <dellcustomerservicenumbers.com> and <msdelcom.net> domain names. A respondent’s actual knowledge of a complainant’s rights in a mark prior to registration of domain names incorporating the mark does adequately show bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). Complainant contends that Respondent must have had actual knowledge of the DELL mark based on the multiple domain names registered with the mark, as well as Respondent’s use of the resolving websites in the same commercial field that Complainant operates in. The Panel agrees with Complainant and finds that Respondent did have actual knowledge of Complainant’s DELL mark, demonstrating bad faith under Policy ¶ 4(a)(iii).
The Panel finds Complainant has satisfied 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 <dellcustomerservicenumbers.com> and <msdelcom.net> domain names be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 8, 2017
[1]Respondent registered the <dellcustomerservicenumbers.com> and <msdelcom.net> domain names on September 11, 2017 and August 10, 2016, respectively.
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