Dell Inc. v. Home of Domains / Domain Admin / This Domain is For Sale
Claim Number: FA1807001799073
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Home of Domains / Domain Admin / This Domain is For Sale (“Respondent”), Arizona, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alienwareaurora.com>, registered with NameSilo, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 30, 2018; the Forum received payment on July 30, 2018.
On July 30, 2018, NameSilo, LLC confirmed by e-mail to the Forum that the <alienwareaurora.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 August 2, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 22, 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@alienwareaurora.com. Also on August 2, 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 August 23, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a world leader in computers, computer accessories, and other computer-related products and services. Complainant sells its products and services in over 180 countries. For several years, it has been the world’s largest direct seller of computer systems. Complainant offers computer gaming hardware, including laptops, desktops, and computer peripherals using the ALIENWARE mark. One if its product lines is called AURORA. Complainant has rights in the ALIENWARE mark based upon its registration of the mark in the United States in 2002.
Complainant alleges that the disputed domain name is confusingly similar to its mark because the domain name includes the entire mark in the disputed domain name plus the term “aurora,” which Complainant has used for more than 10 years in combination with the mark ALIENWARE for several of its products, and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name because Respondent is not authorized by Complainant to use the mark in any way. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, the disputed domain name resolves to a parked page which offers the domain name for sale for a price in excess of out of pocket costs.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent is passively holding the disputed domain name and offering it for sale. Additionally, Respondent had actual knowledge of Complainant’s rights in the mark prior to registration of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark ALIENWARE dating back to 2002. The mark is used to market a variety of products, including a product line called AURORA.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to resolve to a web site that offers the disputed domain name for sale.
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 is confusingly similar to Complainant’s mark because it includes Complainant’s entire mark plus the descriptive term “aurora,” which Complainant has used in combination with its’ mark for several products, and the “.com” gTLD. The addition of a term related to complainant’s business and a gTLD to a mark is not sufficient to distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Sunny Bhadauria, FA 1786429 (Forum June 7, 2018) (finding the <bloombergquint.org> domain name to be confusingly similar to the complainant’s BLOOMBERG mark, as the name consists of the mark, the added term “quint” (which refers to the complainant’s Indian business partner “Quintillian Media”) and the gTLD “.org”). Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent is not authorized by Complainant to use its mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to identify a respondent and thus make a commonly known by determination. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name). Here, the WHOIS information lists “Home of Domains / Domain Admin / This Domain is For Sale” as registrant of record. Consequently, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Further, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent leads internet users to a parked webpage that offers the disputed domain name for sale for a price in excess of out of pocket costs. Use of a domain name to mislead internet users to a parked webpage which offers the domain name for sale may not be considered a bona fide offering of goods and services or a legitimate noncommercial of fair use under Policy ¶¶ 4(c)(i) and (iii). See loanDepot.com, LLC v. sm goo, FA 1786848 (Forum June 12, 2018) (“Respondent has failed to make any active use of the <mellosolar.com> domain name since it was registered, with the exception that the domain name is employed by Respondent to solicit offers to purchase it. Such substantively inactive use is, in the circumstances described in the Complainant, neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy.”). Therefore, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to host a parked webpage where the disputed domain name is offered for sale. Use of a domain name to host a parked webpage that offers a domain name for sale may be evidence of bad faith under Policy ¶ 4(b)(i). See loanDepot.com, LLC v. sm goo, FA 1786848 (Forum June 12, 2018) (finding that where a respondent’s only employment of a substantially identical domain name is to attempt to sell the name, there exist sufficient grounds to find the respondent registered and used the name in bad faith per Policy ¶ 4(b)(i)); see also Staples, Inc. v. lin yanxiao, FA1505001617686 (Forum June 4, 2015) (“Respondent’s offering to sell the disputed domain name to a third party (in this case, the general public) supports a finding of bad faith registration and use.”); Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(i).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alienwareaurora.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 23, 2018
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