Dell Inc. v. gaosun liu / liugaosun
Claim Number: FA2106001951189
Complainant is Dell Inc. ("Complainant"), represented by Caitlin Costello of Pirkey Barber PLLC, Texas, USA. Respondent is gaosun liu / liugaosun ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellpromotion.com>, registered with Network Solutions, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 16, 2021; the Forum received payment on June 16, 2021.
On June 17, 2021, Network Solutions, LLC confirmed by email to the Forum that the <dellpromotion.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 June 18, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 8, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@dellpromotion.com. Also on June 18, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 July 13, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 is a leading seller of computers, computer accessories, and other computer- and technology-related products and services around the world. Complainant has used DELL and related marks in connection with this business for many years, and claims that the DELL mark has become famous in the United States, China, and many other countries as a result of Complainant's marketing and sales success. Complainant owns trademark registrations for DELL in both standard character and stylized form in the United States, China, and other jurisdictions.
Respondent registered the disputed domain name <dellpromotion.com> in April 2021. The domain name is being used for a Chinese-language website that displays gambling-related advertisements and links. Complainant states that Respondent is not commonly known by the disputed domain name and has not been licensed or otherwise permitted to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <dellpromotion.com> is confusingly similar to its DELL mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <dellpromotion.com> incorporates Complainant's registered DELL trademark, adding the generic term "promotion" and the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Dell Inc. v. Dynamix Inc. c/o Dynamix, FA 746810 (Forum Aug. 22, 2006) (finding <dellpromos.com> confusingly similar to DELL); LEGO Juris A/S v. Ken Teo, D2020-2380 (WIPO Nov. 2, 2020) (finding <legopromotion.com> confusingly similar to LEGO); Dyson Technology Ltd. v. Chun Hai Xu, D2018-0756 (WIPO May 30, 2018) (finding <dysonpromotion.com> confusingly similar to DYSON). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and its sole use has been for a website composed of what appear to be gambling-related advertisements and links. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Design Ideas, Ltd. v. Chen Jun Cai, FA 1940100 (Forum May 4, 2021) (finding lack of rights or interests where domain name was used to redirect users to unrelated commercial websites); State Farm Mutual Automobile Insurance Co. v. Super Privacy Service LTD c/o Dynadot, FA 1869512 (Forum Nov. 29, 2019) (finding lack of rights or interests where domain name was used for Chinese-language website advertising games or gambling services).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site 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 [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
The disputed domain name incorporates Complainant's famous mark without authorization, combining the mark with a generic English-language term. It is being used for a Chinese-language website composed of gambling-related advertisements and links, none of which have any apparent connection to the mark or the domain name, presumably for Respondent's commercial gain. Respondent has failed to come forward to explain why the domain name was selected or to state any intentions for its use. Under the circumstances, the Panel considers it reasonable to infer that Respondent registered and is using the domain name in an effort to create and profit from confusion with Complainant's mark. See, e.g., Design Ideas, Ltd. v. Chen Jun Cai, supra (finding bad faith in similar circumstances); Dell Inc. v. Bo Yu, FA 1918443 (Forum Nov. 23, 2020) (same, inferring actual knowledge of Complainant's rights in DELL mark). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellpromotion.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 14, 2021
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