DECISION

 

Dell Inc. v. Julian Brand / Air Travel Deals Solutions

Claim Number: FA1804001782065

PARTIES

Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas.  Respondent is Julian Brand / Air Travel Deals Solutions (“Respondent”), Canada.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, ,<dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net>, registered with NameCheap, Inc.

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on April 17, 2018; the Forum received payment on April 17, 2018.

 

On April 17, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, ,<dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names.  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 April 23, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 14, 2018 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@dell-customer-service.com, postmaster@dell-supportchat.com, postmaster@dellcustomersupport.net, postmaster@delldiagnostics.com, postmaster@dellsupportnumber.net, postmaster@dellwarrantycheck.com, postmaster@dellcomputersupport.org, postmaster@dellchatsupport.com, postmaster@dellcustomerservicenumber.net, postmaster@dellsupportphonenumber.net, postmaster@delltechsupportnumber.net.  Also on April 23, 2018, 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 16, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has rights in the DELL mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,616,571, registered Oct. 9, 1990). See Amend. Compl. Ex. E. Respondent’s <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names are identical and/or confusingly similar to Complainant’s DELL mark as, in creating the domain names, Respondent merely added generic terms (e.g., “customer service,” “support chat,” “customer support,” “diagnostics,” “support number,” “warranty check,” “computer support,” “chat support,” “customer service number,” “support phone number,” or “tech support”) and a “.com,” “.org,” or “.net” generic top level domain (“gTLD”) to the mark.

2.    Respondent has no rights or legitimate interests in the <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names. Respondent is not authorized or permitted to use Complainant’s DELL mark. Additionally, Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain names to pass off as Complainant or its affiliate and offer competing goods and services.

3.    Respondent registered and is using the <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names in bad faith. Respondent’s registration of eleven (11) disputed domain names is evidence of a pattern of bad faith. Moreover, Respondent attracts users to the disputed domain names by passing off as Complainant or its affiliate to offer competing goods and services, and attempts to obtain users’ personal information. Respondent also registered the disputed domain names with a privacy service which is evidence of bad faith. Furthermore, Respondent had actual knowledge of Complainant’s rights in the DELL mark prior to registering the disputed domain names.

 

B.   Respondent

1.    Respondent did not submit a response.

 

FINDINGS

1.    Respondent’s <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names are confusingly similar to Complainant’s DELL mark.

2.    Respondent does not have any rights or legitimate interests in the <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names.

3.    Respondent registered or used the <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names in bad faith.

 

DISCUSSION

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 and/or Confusingly Similar

Complainant claims to have rights in the DELL mark through its trademark registrations with the USPTO.  Registering a mark with the USPTO is sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)). Complainant provides a copy of its USPTO registration for the DELL mark (e.g., Reg. No. 1,616,571, registered Oct. 9, 1990). See Amend. Compl. Ex. E. Thus, the Panel finds Complainant has sufficiently demonstrated its rights in the DELL mark per Policy ¶ 4(a)(i).

 

Next, Complainant contends Respondent’s <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names are identical and/or confusingly similar to Complainant’s DELL mark as Respondent merely adds generic phrases and gTLDs to the mark. Adding generic terms and gTLDs to a mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Complainant argues Respondent adds generic phrases (e.g., “customer service,” “support chat,” “customer support,” “diagnostics,” “support number,” “warranty check,” “computer support,” “chat support,” “customer service number,” “support phone number,” and “tech

support”) and a “.com,” “.org,” or “.net” gTLD to the DELL mark. Therefore, the Panel finds Respondent’s disputed domain names are identical and/or confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant contends that Respondent has no rights or legitimate interests in the <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.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 identifies Respondent as “Julian Brand / Air Travel Deals Solutions.”  See Amend. Compl. Ex. B. Complainant also asserts that no evidence exists to show that Respondent has ever been legitimately known by the DELL mark. Panels may use these assertions as evidence of lacking rights or legitimate interests. 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 alleges that Respondent has never been legitimately affiliated with Complainant, has never been known by the disputed domain name prior to its registration, and Complainant has not given Respondent permission to use the disputed domain name. Accordingly, the Panel agrees that Respondent is not commonly known by the disputed domain names domain name under Policy ¶ 4(c)(ii).

 

Additionally, Complainant claims Respondent does not use the <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Complainant argues Respondent attempts to pass off as Complainant or its affiliate in order to offer competing goods and services. Use of a disputed domain name to pass off and compete with a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Nokia Corp.  v. Eagle,  FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Complainant provides printouts of the disputed domain names’ resolving websites that feature Complainant’s DELL mark and logo in connection with competing, computer support services. See Amend. Compl. Ex. A. The Panel notes Complainant alleges that the phone number provided at the disputed domain name is not associated with Complainant. Id. Therefore, the Panel finds Respondent’s attempts to pass off as and compete with Complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii).

 

Registration and Use in Bad Faith

Complainant alleges Respondent registered and is using the <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names in bad faith. Complainant argues Respondent’s registration of multiple infringing domain names evinces a finding of a pattern of bad faith registration. Registration of multiple disputed domain names targeting a complainant’s mark may support a finding for a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). See Microsoft Corporation and Skype v. zhong biao zhang / Unknown company / zhong zhang, FA1401001538218 (Forum Feb. 20, 2014) (holding that the respondent’s registration of three domain names incorporating variants of the complainant’s SKYPE mark reflected a pattern of bad faith registration under Policy ¶ 4(b)(ii)). The Panel notes Complainant claims eleven (11) domain names were registered that reflect Complainant’s DELL mark. See Amend. Compl. Ex. B. Thus, the Panel finds Respondent’s registration of multiple disputed domain names is evidence for a pattern of bad faith per Policy ¶ 4(b)(ii).

 

Next, Complainant contends Respondent attracts users to the <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names for commercial gain. Specifically, Complainant argues Respondent uses the disputed domain names to pass off as Complainant and offer competing goods and services. Use of a disputed domain name to pass off in order to sell competing goods or service for commercial gain may indicate bad faith under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum December 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Complainant provides printouts of the disputed domain names which resolve to websites that offer computer support services in connection with Complainant’s DELL mark. See Amend. Compl. Ex. A. Complainant also provides printouts from its website, <dell.com> for comparison. See Amend. Compl. Ex. C. Therefore, the Panel finds Respondent is attempting to attract users for commercial gain and this constitutes bad faith per Policy ¶ 4(b)(iv).

 

Additionally, Complainant claims Respondent is using the <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, <dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names to obtain users’ personal information. Use of a disputed domain name in furtherance of a phishing scheme may be indicative of bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)). Complainant argues Respondent attempts to obtain users’ information from its “Contact” page, which asks users for their name, phone number, and email. Complainant provides printouts of these pages with its copies of the disputed domain names resolving websites. See Amend. Compl. Ex. A. Therefore, the Panel finds Respondent engages in phishing and this is evidence of a bad faith per Policy ¶ 4(a)(iii).

 

Furthermore, Complainant claims Respondent had actual knowledge of Complainant’s DELL mark at the time it registered and subsequently used the domain names. However, the Panel may disregard arguments of bad faith based on constructive notice as UDRP case precedent declines to find bad faith as a result of constructive knowledge. See The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). The Panel agrees with Complainant, however, that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and find that actual knowledge does adequately evince 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 due to the fame of the mark, as well as Respondent’s use of Complainant’s logo, pictures of computer products, and services offered at the disputed domain names’ resolving websites. The Panel agrees with Complainant and find that Respondent did have actual knowledge of Complainant’s mark, demonstrating bad faith under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <dell-customer-service.com>, <dell-supportchat.com>, <dellcustomersupport.net>, <delldiagnostics.com>, <dellsupportnumber.net>, <dellwarrantycheck.com>, <dellcomputersupport.org>, ,<dellchatsupport.com>, <dellcustomerservicenumber.net>, <dellsupportphonenumber.net>, and <delltechsupportnumber.net> domain names be TRANSFERRED from Respondent to Complainant.

 

John J. Upchurch, Panelist

Dated:  May 30, 2018