Dell Inc. v. Murphy Zhai
Claim Number: FA1805001786747
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Murphy Zhai (“Respondent”), Washington, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell.ai>, registered with Instra Corporation Pty Ltd.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 15, 2018; the Forum received payment on May 15, 2018.
On May 20, 2018, Instra Corporation Pty Ltd. confirmed by e-mail to the Forum that the <dell.ai> domain name is registered with Instra Corporation Pty Ltd. and that Respondent is the current registrant of the name. Instra Corporation Pty Ltd. has verified that Respondent is bound by the Instra Corporation Pty Ltd. 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 May 22, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 11, 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.ai. Also on May 22, 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 June 13, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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, Dell Inc., is a world leader in computers and computer-related products. Complainant has rights in the DELL mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) ( e.g., Reg. No. 1,616,571, registered Oct. 9, 1990) See Compl. Ex. C. Respondent’s <dell.ai> is identical or confusingly similar to Complainant’s mark as Respondent merely adds the “.ai” country code top-level domain (“ccTLD”) to Complainant’s mark.
Respondent does not have any rights or legitimate interests <dell.ai> domain name. Respondent is not permitted or licensed to use Complainant’s DELL mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain names for any bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent fails to make active use of the disputed domain name. See Compl. Ex. E.
Respondent has registered and is using the domain names in bad faith. Respondent has engaged in a pattern of bad faith registration and use. In addition, Respondent fails to make an active use of the <dell.ai> domain name. Finally, Respondent must have had actual and constructive knowledge of Complainant’s DELL mark prior to registering the <dell.ai> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on December 16, 2017
As Respondent acquiesces to the transfer of the disputed domain name, the Panel finds that it shall be immediately transferred and will forgo the rest of the UDRP analysis.
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.”).
In an email communication to the Forum dated May 25, 2018, Respondent consented to the transfer of the disputed domain name. In this email, Respondent claimed that the registration was done accidentally.
This email read in its entirety as follows:
I hereby agree to transfer the domain name to Dell, Inc.
It was an accident to register the domain name at the first place but the registry did not agree to cancel and refund.
The Panel considers this to be a clear statement of acquiescence to the transfer of the disputed domain name and hereby orders that it be immediately transferred. As such, the Panel will forgo the full analysis under the UDRP.
Having acquiesced to the transfer of the disputed domain name, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <dell.ai> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: June 14, 2018
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