Dell Inc. v. Ashish Gupta
Claim Number: FA1903001832293
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Ashish Gupta (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delltechsupportnumbers.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.
Hon. Karl V. Fink (Ret.) as Panelist
Complainant submitted a Complaint to the Forum electronically on March 1, 2019; the Forum received payment on March 1, 2019.
On March 4, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <delltechsupportnumbers.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 March 5, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 25, 2019 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@delltechsupportnumbers.com. Also on March 5, 2019, 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 March 26, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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 world leader in computers, computer accessories, and other computer-related products and services. Complainant has rights in the DELL mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 1,616,571, registered Oct. 9, 1990). Respondent’s <delltechsupportnumbers.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the famous DELL mark, merely tacking on the generic terms “tech,” “support,” and “numbers,” along with the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <delltechsupportnumbers.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the domain name was being used for a website that attempted to deceive consumers into thinking that Respondent is Complainant or is at least affiliated or connected with, or authorized by, Complainant. Further, through this deception, Respondent attempted to gather Internet users’ personal information through its “Contact Us” page. Additionally, Respondent recently removed the website content, and the domain name currently does not resolve to any substantive content.
Respondent registered and uses the <delltechsupportnumbers.com> domain name in bad faith as Respondent attempted to cause confusion by deceiving Internet users into thinking that Respondent is associated with Complainant. Additionally, Respondent currently passively holds the domain name. Further, Respondent clearly knew of Complainant’s rights in its marks given Respondent’s use of the domain name to host a website which used the marks, offered repair and maintenance services for Complainant’s products, featured images of Complainant’s products, and targeted Complainant’s customers.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <delltechsupportnumbers.com> domain name.
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 claims rights in the DELL mark through its registration of the mark 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 DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). The Panel finds that Complainant has established rights in the DELL mark for the purposes of Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <delltechsupportnumbers.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the famous DELL mark, merely tacking on the generic terms “tech,” “support,” and “numbers,” along with the “.com” gTLD. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). The Panel finds that the <delltechsupportnumbers.com> domain name is confusingly similar to the DELL mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
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 <delltechsupportnumbers.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Relevant information includes the WHOIS, assertions by a complainant regarding the nature of its relationship with a respondent, and other evidence in the record to support these assertions. See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”). The WHOIS identifies “Ashish Gupta” as the registrant, and nothing in the record indicates that Complainant authorized Respondent to use the mark for any purpose. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant argues that the domain name was being used for a website that attempted to deceive consumers into thinking that Respondent is Complainant or is at least affiliated or connected with, or authorized by, Complainant. Using a confusingly similar domain name to pass off as a complainant can evince a failure to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. See BALENCIAGA SA v. ling lin, FA 1768542 (Forum Feb. 16, 2018) (“The disputed domain names incorporate Complainant's registered mark, and are being used for websites that prominently display Complainant's mark and logo, along with apparent images of Complainant's products, offering them for sale at discounted prices. [. . .] Such use does not give rise to rights or legitimate interests.”). Complainant provides a screenshot of the resolving webpage formerly associated with the domain name, which displayed the DELL mark and logo, various images of computer related products, and purported to offer support services. The Panel finds that Respondent attempted to pass itself off as Complainant, failing to use the domain name in connection with 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).
Complainant argues that through this deception, Respondent attempted to gather Internet users’ personal information through its “Contact Us” page. Phishing schemes can evince a failure to make a bona fide offering of goods or services or legitimate noncommercial or fair use. See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”). To support this contention, Complainant provides a declaration from Danae T. Robinson, an associate at the law firm Pirkey Barber PLLC, who states “the website also requested information from visitors, including their name, phone number, and email address, through a ‘Contact Us’ page.” The Panel finds that Respondent’s use of the domain name in connection with a fraudulent phishing scheme fails to indicate 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).
Complainant argues that Respondent recently removed the website content, and the domain name currently does not resolve to any substantive content. Failure to make active use of a confusingly similar domain name can evince a lack of rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii). See Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy ¶¶ 4(c)(i) or (iii).”). Within the declaration provided by Complainant, Danae T. Robinson states “[b]y February 27, 2019, the content had been removed from delltechsupportnumbers.com and the domain currently does not resolve to any content.” Complainant does not provide any other evidence in support of this argument. The Panel finds Respondent fails to make use of the domain name, and lacks rights or legitimate interests in respect of the domain name under the Policy.
Complainant has proved this element.
Complainant claims that Respondent registered and uses the infringing domain name in bad faith as Respondent attempted to commercially benefit by causing confusion through deceiving Internet users into thinking that Respondent is associated with Complainant. Using a confusingly similar domain name to trade upon the goodwill of a complainant’s mark for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 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’s provided screenshot of the resolving webpage formerly associated with the domain name shows that it displayed the DELL mark and logo, various images of computer related products, and purported to offer support services. The Panel finds that Respondent attempted to commercially benefit off Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Complainant argues that Respondent currently passively holds the <delltechsupportnumbers.com> domain name. Inactively holding a confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii). See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”). The declaration provided by Complainant, by Danae T. Robinson states “[b]y February 27, 2019, the content had been removed from delltechsupportnumbers.com and the domain currently does not resolve to any content.” The Panel finds that Respondent’s failure to use the domain name demonstrates Respondent’s bad faith under the Policy.
Complainant argues that Respondent had actual knowledge of Complainant’s rights in the DELL mark at the time of registering the infringing domain name. Actual knowledge of a complainant's rights in a mark prior to registering a confusingly similar domain name can evince bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Complainant contends that Respondent’s knowledge can be inferred given Respondent’s use of the domain name to host a website which used the marks, offered repair and maintenance services for Complainant’s products, featured images of Complainant’s products, and targeted Complainant’s customers. The Panel finds that Respondent did have actual knowledge of Complainant’s mark, and registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proved this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <delltechsupportnumbers.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
Dated: March 28, 2019
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page