Dell Inc. v. Nagarjuna T
Claim Number: FA1906001850291
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Virginia, USA. Respondent is Nagarjuna T (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell-laptoprepair.com>, registered with Wild West Domains, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 28, 2019; the Forum received payment on June 28, 2019.
On June 28, 2019, Wild West Domains, LLC confirmed by e-mail to the Forum that the <dell-laptoprepair.com> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 July 8, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 29, 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@dell-laptoprepair.com. Also on July 8, 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 July 31, 2019, 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 has also developed a family of businesses, collectively known as Dell Technologies, that offers products and services related to technology, software, security, and more. Dell Technologies provides the essential infrastructure for organizations to build their digital future, transform IT, and protect their most important asset, information. Over the years, Complainant has invested heavily in marketing under its marks, devoting hundreds of millions of dollars to advertising and promoting its products and services through many media in many countries. Complainant has used television, radio, magazines, newspapers, and the Internet as marketing media. Complainant has been, and continues to be, extremely successful. Complainant sells its products and services in over 180 countries, including India. Complainant has generated $91.3 billion in revenue in Fiscal Year 2019 and is #35 on the Fortune 500. As a consequence of Complainant’s marketing and sales success, it and its marks have become famous in the United States and many other countries. Complainant has rights in the DELL mark through its registration with multiple trademark agencies, including in the United States in 1994.
Complainant alleges that the disputed domain name is confusingly similar to its DELL mark, because it incorporates the DELL mark in its entirety and merely adds the generic phrase “laptop repair,” which is highly likely to be associated with Complainant, along with the generic top-level domain (gTLD) “.com.”
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name as Complainant has not authorized Respondent to use its mark and Respondent is not commonly known by the disputed domain name. Respondent fails to make a bona fide offering of goods or services or legitimate or noncommercial or fair use. Instead, Respondent uses the disputed domain name with the intent to divert internet users by creating the false impression of affiliation with Complainant. Respondent also uses the disputed domain name to offer products or services that compete with Complainant.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to attract Internet users for commercial gain by creating a likelihood of confusion with Complainant by using the DELL mark and referring to services offered by Complainant under that mark. Respondent also uses the disputed domain name to promote services that directly compete with Complainant. Finally, Respondent had knowledge of Complainant’s rights in the DELL mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for the mark DELL and uses it to provide a wide range of information technology products and services. The mark was registered in 1994 and it is famous.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name was registered in 2019.
The resolving website offers products and services that compete with those of Complainant.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name incorporates Complainant’s DELL mark in its entirety, merely adding a hyphen, the generic/descriptive phrase “laptop repair” which is highly likely to be associated with Complainant, and the gTLD “.com.” Use of a disputed domain name that includes a mark in its entirety and adds a generic term and gTLD does not distinguish the domain name form the mark per Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)). The addition of a hyphen is irrelevant for an identity or confusing similarity test under Policy ¶ 4(a)(i). See Daniel Handler v. Masanori Toriimoto / PLAN-B Co.,Ltd, FA 1778986 (Forum May 7, 2018) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy). Therefore, the Panel finds that the <dell-laptoprepair.com> domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: absent a response, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as “Nagarjuna T”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to offer competing goods or services. Use of a disputed domain name that incorporates a well-known mark to offer competing services is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (“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).”). Therefore, the Panel finds that Respondent does not make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). Moreover, the Panel finds that Respondent has no 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, the resolving website offers products and services that compete with those of Complainant. Past panels have found bad faith pursuant to Policy ¶ 4(b)(iii) where a respondent appropriates a complainant’s mark to divert the complainant’s customers to the respondent’s competing business. See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website); see also Univ. of Texas Sys. v. Smith, FA 1195696 (Forum July 7, 2008) (finding that using the resolving website to divert Internet users to the complainant’s competitors constituted bad faith registration and use under Policy ¶ 4(b)(iii)); see also DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
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-laptoprepair.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: July 31, 2019
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page