Dell Inc. v. Dong Chen Payments L.D.C. / DOMAIN ADMINISTRATOR
Claim Number: FA2005001895130
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Dong Chen Payments L.D.C. / DOMAIN ADMINISTRATOR (“Respondent”), Belize.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellrackservers.com>, registered with Lexsynergy Limited.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 6, 2020; the Forum received payment on May 6, 2020.
On May 7, 2020, Lexsynergy Limited confirmed by e-mail to the Forum that the <dellrackservers.com> domain name is registered with Lexsynergy Limited and that Respondent is the current registrant of the name. Lexsynergy Limited has verified that Respondent is bound by the Lexsynergy Limited 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 May 8, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 28, 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@dellrackservers.com. Also on May 8, 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 June 2, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <dellrackservers.com> domain name is confusingly similar to Complainant’s DELL mark.
2. Respondent does not have any rights or legitimate interests in the <dellrackservers.com> domain name.
3. Respondent registered and uses the <dellrackservers.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant is a leader in computers and computer-related products and services. Complainant holds a registration for the DELL mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,860,272, registered Oct. 25, 1994).
Respondent registered the <dellrackservers.com> domain name was on April 23, 2020, and uses it to redirect Internet users to a third party online marketplace that sells Complainant’s goods.
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 Panel finds that Complainant has rights in the DELL mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <dellrackservers.com> domain name uses Complainant’s DELL mark and adds the generic terms “rack” and “servers,” as well as the “.com” generic top-level domain (“gTLD”). Adding generic terms to a complainant’s mark does not sufficiently distinguish a disputed domain name from the mark under Policy ¶ 4(a)(i). 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.”). Accordingly, the Panel finds that Respondent’s <dellrackservers.com> domain name is confusingly similar to Complainant’s DELL mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent has no rights or legitimate interests in the <dellrackservers.com> domain name, as Respondent is not commonly known by the disputed domain name and has not been licensed or authorized by the Complainant to use Complainant’s mark. The WHOIS of record identifies the Respondent as “Dong Chen Payments L.D.C. / DOMAIN ADMINISTRATOR.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights or legitimate interests in the domain name as Respondent under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Complainant also argues that Respondent fails to use the <dellrackservers.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because it uses the domain name to redirect Internet users to a third party online marketplace that sells Complainant’s goods. Diverting Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Invesco Ltd. v. Premanshu Rana, FA 1733167 (Forum July 10, 2017) (“Use of a domain name to divert Internet users to a competing website is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.”). Complainant provides screenshots of the <dellrackservers.com> domain name’s resolving webpage, which displays Complainant’s goods on a third party reseller website. Therefore, the Panel finds that Respondent fails to use the <dellrackservers.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus h as no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and used the <dellrackservers.com> domain name in bad faith by using it to redirect Internet users to a third party reseller that offers the goods of Complainant and Complainant’s competitors. Registering a disputed domain name to redirect Internet users seeking a complainant to a competing website is evidence of bad faith under Policy ¶ 4(b)(iii). See Am. Online, Inc. v. Tapia, FA 328159 (Forum Dec. 1, 2004) (“Respondent is referring Internet traffic that seeks out the <aol.tv> domain name to a competitor’s news site. The Panel strongly finds that appropriating Complainant’s mark to refer customers seeking Complainant to Complainant’s competitors is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). Accordingly, the Panel finds that Respondent registered and used the <dellrackservers.com> domain name in bad faith under Policy ¶ 4(b)(iii).
Complainant argues that Respondent had knowledge of Complainant’s rights in the DELL mark at the time of registering the <dellrackservers.com> domain name. To support this assertion, Complainant points to its trademark registrations along with the fact that Respondent redirects Internet users to third parties that offer Complainant’s products. The Panel finds that Respondent had actual knowledge of Complainant’s rights in the DELL mark, demonstrating bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(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 <dellrackservers.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 3, 2020
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