Dell Inc. v. Mohsham Center
Claim Number: FA1804001782317
Complainant is Dell Inc. ("Complainant"), represented by Danae T. Robinson, Texas, USA. Respondent is Mohsham Center ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <supportdellcom.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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 18, 2018; the Forum received payment on April 18, 2018.
On April 18, 2018, GoDaddy.com, LLC confirmed by email to the Forum that the <supportdellcom.com> 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 18, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 8, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@supportdellcom.com. Also on April 18, 2018, the Written Notice of the Complaint, notifying Respondent of the email 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 14, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a leading seller of computers, computer accessories, and other computer-related products and services. Complainant's DELL mark is the subject of several U.S. trademark registrations, and Complainant claims that the mark has become famous in the United States and many other countries as a result of Complainant's marketing and sales success.
Respondent registered the disputed domain name <supportdellcom.com> in January 2018. The domain name is being used for a website that displays Complainant's mark and uses the same color scheme that Complainant typically uses, copying the look and feel of Complainant's website in a manner likely to lead consumers to believe that the site is somehow affiliated with Complainant. The site promotes computer support services that compete directly with those offered by Complainant. It includes an inconspicuous disclaimer at the bottom of each page explaining that it is independent of Complainant. Complainant states that Respondent is not an authorized service provider for Complainant, and that Complainant has not licensed or otherwise permitted Respondent to use any of its marks.
Complainant contends on the above grounds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used 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.").
The disputed domain name <supportdellcom.com> incorporates Complainant's registered DELL mark, adding the generic terms "support" and "com" and appending the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Dell Inc. v. BHUWANESHWAR KC / A A / WW WW / AA AA / MA BN / ABC CBA / ASD AA / SS SS / SS S / HH HHH / AAA CCC / AAA SSS / acb nnn / abc abc / ABC VVCX / ZZZ ZZZ / ABC BBB, FA 1675101 (Forum June 17, 2016) (finding <dell-com-support.com> confusingly similar to DELL). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and its only apparent use has been for a website that promotes directly competing services in a manner designed to deceive users into believing that there is a connection between Respondent and Complainant. Such use does not give rise to rights or legitimate interests. See, e.g., Dell Inc. v. BHUWANESHWAR KC, supra (finding lack of rights or legitimate interests under similar circumstances); Dell Inc. v. Vijayan Anbalagan, FA 1531184 (Forum Dec. 30, 2013) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name obviously intended to create confusion with Complainant, and is using it for a website that exploits this confusion, attempting to pass off as Complainant and promoting services that compete directly with those offered by Complainant. Respondent's conduct is indicative of bad faith registration and use under the Policy. See, e.g., Dell Inc. v. BHUWANESHWAR KC, supra (finding bad faith registration and use under similar circumstances); Dell Inc. v. Vijayan Anbalagan, supra (same). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <supportdellcom.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: May 14, 2018
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