Dell Inc. v. mintu das / micro india technologies
Claim Number: FA2001001878968
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, United States. Respondent is mintu das / micro india technologies (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellservicecentersupport.com>, registered with Wix.com Ltd..
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 January 15, 2020; the Forum received payment on January 15, 2020.
On January 19, 2020, Wix.com Ltd. confirmed by e-mail to the Forum that the <dellservicecentersupport.com> domain name is registered with Wix.com Ltd. and that Respondent is the current registrant of the name. Wix.com Ltd. has verified that Respondent is bound by the Wix.com Ltd. 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 January 20, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 10, 2020 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@dellservicecentersupport.com. Also on January 20, 2020, 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 February 14, 2020, 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, Dell Inc., 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”).
Respondent’s <dellservicecentersupport.com> domain name is confusingly similar to Complainant’s DELL mark. Respondent incorporates the mark in entirety and adds the generic phrase “service center support” along with the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <dellservicecentersupport.com> domain name. Respondent is not licensed or authorized to use Complainant’s DELL mark and is not commonly known by the disputed domain name. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the at-issue domain name in an attempt to pass off as Complainant by offering competing services and displaying its DELL mark along with its logo and pictures of products sold by Complainant. Respondent also engages in a phishing scheme to obtain personal information from consumers who visit Respondent’s resolving webpage.
Respondent registered and uses the <dellservicecentersupport.com> domain name in bad faith. Respondent is attempting to attract Internet users to its competing website for commercial gain. Respondent also engages in a phishing scheme to obtain personal information from Complainant’s customers. Finally, Respondent had actual knowledge of Complainant’s rights in the DELL mark prior to the registration of the disputed domain name.
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 pass itself off as Complainant and offer competitive services. Respondent also engages in a phishing scheme to obtain personal information from consumers.
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 followed by the generic term or terms “service center support” 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. Therefore, the Panel finds that pursuant to Policy ¶ 4(a)(i) Respondent’s <dellservicecentersupport.com> domain name is confusingly similar to Complainant’s DELL trademark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy).
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.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Mintu Das / micro india technologies” and the record before the Panel contains no evidence that tends to prove that Respondent is commonly known by the <dellservicecentersupport.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <dellservicecentersupport.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 address a website offering services that compete with Complainant. The website displays Complainant trademark, product images, and a variant of Complainant’s logo while offering “Dell Original Spear (sic) Parts Sales Services.” 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 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).”), see also Fadal Engineering, LLC v. DANIEL STRIZICH,INDEPENDENT TECHNOLOGY SERVICE INC, FA 1581942 (Forum Nov. 13, 2014) (finding that Respondent’s use of the disputed domain to sell products related to Complainant without authorization “does not amount to 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).”).
Likewise, Respondent’s use of the domain name to engage in a phishing scheme aimed at tricking internet users into giving up personal information lends no support to Respondent having rights or legitimate interests in its <dellservicecentersupport.com> domain name. Respondent’s <dellservicecentersupport.com> website displays a “Contact Us” form where visitors can enter personal data which Respondent’s might later exploit. 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 without limitation, various 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 domain name to direct internet traffic to Respondent’s <dellservicecentersupport.com> website where Respondent offers service that complete with Complainant’s services. Such use of the domain name indicates Respondent’s bad faith pursuant Policy ¶ 4(b)(iii) and (iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business).
Next and as also mentioned regarding rights or legitimate interests, Respondent’s uses the at-issue domain name facilitate a phishing scheme designed to extract personal information from website visitors. Such use further indicates Respondent’s bad faith per Policy ¶ 4(a)(iii). See United States Postal Service v. kyle javier, FA 1787265 (Forum June 12, 2018) (“Use of a domain name to phish for Internet users’ personal information is evidence of bad faith.”).
Finally, Respondent registered the <dellservicecentersupport.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 and from Respondent’s use of the domain name to offer competing services which including the overt use of Complainant’s trademark, product images, and logo. It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <dellservicecentersupport.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 <dellservicecentersupport.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: February 17, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page