Dell Inc. v. Rajesh Sahani
Claim Number: FA1910001867163
Complainant is Dell Inc. (“Complainant”), represented by Fernando Triana, Colombia. Respondent is Rajesh Sahani (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellsupport.co>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 16, 2019; the Forum received payment on October 16, 2019.
On October 17, 2019, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <dellsupport.co> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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”).
In response to a request by the Forum, Complainant submitted an Amended Complaint electronically on October 17, 2019.
On October 17, 2019, the Forum served the Amended Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 6, 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@dellsupport.co. Also on October 17, 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 8, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 owns and uses the DELL trademark in various jurisdictions in connection with computers and related services. The disputed domain name is confusingly similar to Complainant’s trademark, which is distinctive and famous.
Respondent does not have rights or legitimate interests in the <dellsupport.co> domain name. Respondent is not permitted or licensed to use Complainant’s DELL mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the <dellsupport.co> domain name to pass itself off as Complainant in order to offer services that directly compete with Complainant.
Respondent registered and is using the <dellsupport.co> domain name in bad faith. Respondent is attempting to attract Internet users to its competing website for commercial gain. Additionally, Respondent failed to respond to Complainant’s cease and desist letter. Finally, Respondent had actual knowledge or constructive notice of Complainant’s DELL mark prior to registering the <dellsupport.co> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Founded in 1984 by Mr. Michael Dell, Complainant is in the business of development, sale and repair of computers and related products and the provision of services, including support services. Complainant has rights in the DELL mark based upon numerous registrations in many countries, including United States Patent and Trademark Office registration No. 1,616,571, registered Oct. 9, 1990 and Colombian registration No. 215941, registered Jan. 26, 1999. The DELL mark is one of the world’s most valuable brands (Complaint Annex 6).
Respondent registered the <dellsupport.co> domain name on March 4, 2019, and uses it to pass itself off as Complainant and offer competing services.
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 but may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶4.3.
Respondent’s <dellsupport.co> domain name comprises Complainant’s DELL mark together with the generic term “support” and the “.co” country code top-level domain (“ccTLD”). Since Complainant itself offers support services, the addition of the word “support” to Complainant’s DELL mark does nothing to distinguish the disputed domain name from that mark.
Although the “.co” domain extension is the ccTLD assigned to Colombia, there are no restrictions on who can register second level “.co” domains and it has become widely accepted as an international domain representing “company” or “corporation”. In comparing the DELL trademark with the disputed domain name for the purposes of determining identity or confusing similarity, the “.co” extension is inconsequential and may be disregarded. See Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
Respondent’s website (Complaint Annex 11) also displays a disclaimer at the foot of the home page in fine print in the following terms:
“We are an independent third party tech support service provider, offering third party support services for Dell products. Any use of brand names, third party trademarks, and products and services is only for reference purpose. We reject any association, sponsorship, or authorization of or by any third-parties. If your product is under the warranty period, the support service is available free from the manufacturer.”
The Panel considers that the combination of the disputed domain name itself, the display on Respondent’s website of the DELL mark and the “look and feel” of Respondent’s website all create the false impression that the domain name and website belong to or are associated with Complainant and that the disclaimer is unlikely to be seen by the majority of website visitors nor to dispel that false impression in those who do see it.
These circumstances, coupled with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the Domain Name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the Domain Name. See Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753. The Respondent has made no attempt to do so.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location.
The Panel considers that what the disclaimer on Respondent’s website does make clear is that Respondent had Complainant and its DELL mark in mind when registering the <dellsupport.co> domain name. Hence the Panel concludes that Respondent registered the disputed domain name primarily for the purpose of disrupting the business of a competitor and is using the disputed domain name intentionally to attempt to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant’s DELL mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or of a service on its website.
The Panel therefore finds that Respondent registered and is using the disputed domain name in bad faith.
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 <dellsupport.co> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: November 12, 2019
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