Dell Inc. v. mandip / dell
Claim Number: FA1910001866708
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is mandip / dell (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellservicecentrekolkata.com>, registered with Google 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 14, 2019; the Forum received payment on October 14, 2019.
On October 15, 2019, Google LLC confirmed by e-mail to the Forum that the <dellservicecentrekolkata.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 October 16, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 5, 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@dellservicecentrekolkata.com. Also on October 16, 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 Paul M. DeCicco 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 contends as follows:
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 with the United States Patent and Trademark Office (“USPTO”) and otherwise.
Respondent’s <dellservicecentrekolkata.com> domain name is confusingly similar to Complainant’s DELL mark. Respondent incorporates Complainant’s mark in its entirety and adds the generic phrase “service centre” and the geographic descriptor “Kolkata” along with the “.com” generic top-level domain.
Respondent has no rights or legitimate interest in the <dellservicecentrekolkata.com> domain name as Respondent is not commonly known by the domain name. Respondent further fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name’s domain name resolves to a website that exhibits pictures of Complainant’s DELL products and marks and collects personal data from website visitors.
Respondent registered and used the <dellservicecentrekolkata.com> domain name in bad faith as Respondent uses the at-issue domain name by offering competing repair and maintenance services in hopes to create a likelihood of confusion with Complainant. Respondent’s use of a privacy service to register the disputed domain name at issue gives rise to a rebuttable presumption of Respondent’s bad faith. Respondent also had actual knowledge of Complainant’s rights in the DELL mark prior to registration of the at-issue domain name through Complainant’s longstanding use of the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the DELL mark as demonstrated by its registration of such mark with the USPTO.
Complainant’s rights in the DELL mark existed prior to Respondent’s registration of the at-issue domain name.
Respondent uses the at-issue domain name to pose as Complainant and address a website offering computer support services that are in competition with services offered by Complainant. Respondent also uses the domain name to gather internet users’ personal information such as their name, phone number, and email address.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of a USPTO trademark registration for the DELL trademark sufficiently evidences its rights in such mark for the purposes of Policy ¶ 4(a)(I). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”).
Additionally, the at-issue domain name contains Complainant’s entire DELL trademark with the suggestive term “service center” and the descriptive/geographic term “Kolkata” –the capital of the Indian state of West Bengal– appended thereto, all followed by the top-level domain name “.com”. The differences between the at-issue domain name and Complainant’s DELL trademark are insufficient to distinguish one from the other for the purpose of the Policy. Further, the descriptive and geographic terms in the trademark laden domain name suggests Complainant’s service related business as well as a local where Complainant does business in India. The included terms thus add to any confusion between the domain name and Complainant’s trademark. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i) Respondent’s <dellservicecentrekolkata.com> domain name is confusingly similar to Complainant’s DELL trademark. 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.”); see also Doosan Corporation v. philippe champain, FA 1636675 (Forum Oct. 13, 2015) (finding that geographic designations or terms descriptive of a complainant’s business operations do not remove a domain name from the realm of confusing similarity).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Mandip / dell” and notwithstanding the inclusion of “dell” in the information the record before the Panel contains no evidence that tends to prove that Respondent is commonly known by the <dellservicecentrekolkata.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <dellservicecentrekolkata.com> domain name for the purposes of Policy ¶ 4(c)(ii). 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).
Furthermore, Respondent uses the at-issue domain name to falsely imply an affiliation with Complainant in furtherance of offering computer support services that compete with services offered by Complainant. Respondent adds to the sham by displaying Complainant’s trademark and product images on the <dellservicecentrekolkata.com> website. Using the at-issue domain name in this manner is neither a bona fide offering of goods or services under Policy ¶4(c)(i), nor a non-commercial or fair use under Policy ¶4(c)(iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also, Upwork Global Inc. v. Shoaib Malik, FA 1654759 (Forum Feb. 3, 2016) (finding that the complainant provides freelance talent services, and that the respondent competes with the complainant by promoting freelance talent services through the disputed domain’s resolving webpage, which is neither a bona fide offering of goods or services, nor is it a legitimate noncommercial or fair use).
Likewise, Respondent’s use of the domain name to gather internet users’ personal information by referring such users to a “Contact Us” webpage lends no support to Respondent having rights or legitimate interests in its <dellservicecentrekolkata.com> domain name. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum Mar. 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The at-issue domain name was registered and used in bad faith. As discussed below, relevant circumstances lead the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First as mentioned above regarding rights or legitimate interests, Respondent registered and used the confusingly similar <dellservicecentrekolkata.com> domain name to deceive internet users into believing they were dealing with Complainant or an entity affiliated with Complainant. Further, via the <dellservicecentrekolkata.com> website Respondent offers computer support services competing with those services offered by Complainant. Respondent’s use of the confusingly similar domain name so that Respondent may trade upon Complainant’s goodwill for commercial gain demonstrates Respondent’s bad faith under Policy ¶¶ 4(b)(iii) and (iv). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum Jan. 9, 2018) (Finding that Respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also, 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.”).
Second, Respondent’s use of the confusingly similar domain name to collect the private information of internet users visiting the <dellservicecentrekolkata.com> website. Respondent’s phishing for private information also indicates Respondent’s bad faith registration and use under Policy ¶ 4(a)(iii). See Morgan Stanley v. Bruce Pu, FA 1764120 (Forum Feb. 2, 2018) (“[T]he screenshot of the resolving webpage allows users to input their name and email address, which Complainant claims Respondent uses that to fraudulently phish for information. Thus, the Panel agrees that Respondent phishes for information and finds that Respondent does so in bad faith under Policy ¶ 4(a)(iii).”).
Finally, Respondent registered the <dellservicecentrekolkata.com> domain name knowing that Complainant had trademark rights in the DELL mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s DELL trademark, from Respondent’s use of the domain name to display the DELL mark and Dell related products, and from Respondent’s offering of services of those offered by Complainant. It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit their trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <dellservicecentrekolkata.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellservicecentrekolkata.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 6, 2019
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