Dell Inc. v. wang xuecheng
Claim Number: FA1910001866298
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is wang xuecheng (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bjdell.com>, registered with 1API GmbH;.
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 October 11, 2019; the Forum received payment on October 11, 2019.
On October 14, 2019, 1API GmbH; confirmed by e-mail to the Forum that the <bjdell.com> domain name is registered with 1API GmbH; and that Respondent is the current registrant of the name. 1API GmbH; has verified that Respondent is bound by the 1API GmbH; 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 October 15, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 4, 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 email@example.com. Also on October 15, 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 November 6, 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.
Complainant states that is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has also developed a family of businesses that offers products and services related to technology, software, security, and more. Complainant 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: it sells its products and services in over 180 countries, including China. Complainant has generated $91.3 billion in revenue in Fiscal Year 2019 and is #35 on the Fortune 500. As a consequence of its marketing and sales success, Complainant and its marks have become famous in the United States and many other countries. Complainant has rights in the DELL mark through its registration in the United States in 1994.
Complainant alleges that the disputed domain name is confusingly similar to its DELL mark as it incorporates the mark in its entirety and merely adds the letters “bj” and the “.com” generic top-level domain (gTLD).
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name. Respondent also fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent promotes offerings unrelated to Complainant, in this case, adult oriented material.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent attempts to attract, for commercial gain, users to the disputed domain name by creating a likelihood of confusion as to source, sponsorship, affiliation or endorsement of Respondent’s website. Specifically, Respondent uses the disputed domain name to feature adult-oriented content.
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark DELL and uses it to market computer-related products and services. Complainant’s rights in its mark date back to 1994. The mark is famous.
The disputed domain name was registered in 2019.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving webpage displays adult-oriented content.
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 contains Complainant’s DELL mark in its entirety and merely adds the letters “bj” (which can refer to a sexual act) along with a gTLD. This does not distinguish the domain name from 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)); see also Emerson Electric Co. v. wang weifang zhenming / weifang zhenming xinxikeji co.,ltd., FA1711001756930 (Forum Dec. 7, 2017) (finding confusing similarity where the disputed domain name “contains Complainant’s entire mark and adds a hyphen, the term ‘ups,’ the letters ‘d’ and ‘y,’ along with the gTLD ‘.com.’”); see also AbbVie Inc. v. Season Advertising, S.L., FA1704001727071 (Forum Jun. 12, 2017) (finding confusing similarity where the disputed domain name <abbvie-hcv.com> incorporated complainant’s entire mark and appended “a hyphen, followed by two or three additional letters and the gTLD ‘.com’”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s 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 “wang xuecheng / wang xuecheng”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The resolving websites promotes offerings unrelated to Complainant: adult-oriented material. Use of a disputed domain name to offer and promote adult-oriented materials is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”). Accordingly, the Panel finds that Respondent has failed to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (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, the resolving website offers adult-oriented content. Use of a disputed domain name to offer adult-orientated material to Internet users may be evidence of bad faith per Policy ¶ 4(a)(iii). See Molson Canada 2005 v. JEAN LUCAS / DOMCHARME GROUP, FA1412001596702 (Forum Feb. 10, 2015) (“Further, Respondent’s diversion of the domain names to adult-oriented sites is registration and use of the disputed domain names in bad faith under Policy ¶ 4(a)(iii).”). Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Further, Respondent’s use of the disputed domain name to create a likelihood of confusion with Complainant’s mark in order to attract Internet users for commercial gain is evidence of Respondent’s bad faith. Past panels have found that use of a confusingly similar domain name for commercial purposes unrelated to a complainant’s business can indicate bad faith registration and use per Policy ¶¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”). Consequently, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bjdell.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 6, 2019
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