Dell Inc. v. sandip roy
Claim Number: FA2101001929859
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Texas, USA. Respondent is sandip roy (“Respondent”), Kolkata, India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellservicecenterskolkata.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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 27, 2021. The Forum received payment on January 27, 2021.
On January 28, 2021, Wix.com Ltd. confirmed by e-mail to the Forum that the <dellservicecenterskolkata.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 28, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 17, 2021 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@dellservicecenterskolkata.com. Also on January 28, 2021, 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 22, 2021, 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, Dell Inc., is a world leader in computers and computer-related products. Complainant has rights in the DELL mark based on registration with the United States Patent and Trademark Office (“USPTO”) and in India. Complainant and its marks have become famous in the United States and many other countries, including India.
Respondent’s <dellservicecenterskolkata.com> domain name is confusingly similar to Complainant’s DELL mark, particularly so because the term “Kolkata”, the capital of the Indian state of West Bengal, is likely to be associated with Complainant’s operation in India.
Respondent does not have rights or legitimate interests in the <dellservicecenterskolkata.com> domain name. Respondent is not commonly known by the domain name and Complainant has not authorized, licensed, or permitted Respondent to use the DELL mark. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses it to pass itself off as Complainant, offer competing services, and phish for consumers’ personal information.
Respondent registered and uses the <dellservicecenterskolkata.com> domain name in bad faith. Respondent diverts consumers from Complainant’s own website to Respondent’s website where it passes itself off as Complainant and offers competing services. Additionally, Respondent phishes for consumers’ personal information. Furthermore, Respondent has constructive and/or actual knowledge of Complainant’s rights in the DELL mark based on Respondent’s use of Complainant’s mark and product images on the resolving website for the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Complainant has shown that it has rights in the DELL mark based on registration with the USPTO (e.g., Reg. No. 2,236,785, registered April 6, 1999) and in India (e.g. Reg. No. 1190376, registered on April 7, 2003).
The Panel finds Respondent’s <dellservicecenterskolkata.com> domain name to be confusingly similar to Complainant’s DELL mark because it simply adds to the mark the generic term “service centers” and the geographic term “Kolkata”, which do nothing to distinguish the domain name from the mark, together with the inconsequential “.com” generic top level domain (“gTLD”), which may be ignored.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in a disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy, i.e.
(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.
Complainant has shown that its DELL mark had become famous several years before Respondent registered the disputed domain name on December 22, 2020. The domain name resolves to a website that claims to be a “Dell Laptop Service Center In Kolkata”, displaying the Dell logo and using colours reminiscent of those on Complainant’s official website “www.dell.com”. Respondent’s website contains images of Complainant’s products and offers “Dell Repair Services”. It also seeks personal information from Internet users.
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 Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name.
Complainant has established this element.
This element requires Complainant to establish, on the balance of probability, that Respondent both registered the disputed domain name in bad faith and is using it in bad faith.
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iv) by using the domain name, 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 Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The Panel finds that Respondent knew of Complainant’s famous DELL mark when registering the domain name <dellservicecenterskolkata.com> and that, by using it for a website displaying the DELL mark that purports to offer competing services, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website.
Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith.
Complainant has established this element.
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 <dellservicecenterskolkata.com> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: February 23, 2021
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