Dell Inc. v. live micro
Claim Number: FA2204001994355
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Texas, USA. Respondent is live micro (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell-supportassist.com>, registered with Eranet International Limited.
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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 29, 2022; the Forum received payment on April 29, 2022.
On May 5, 2022, Eranet International Limited confirmed by e-mail to the Forum that the <dell-supportassist.com> domain name is registered with Eranet International Limited and that Respondent is the current registrant of the name. Eranet International Limited has verified that Respondent is bound by the Eranet International 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 11, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 31, 2022 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@dell-supportassist.com. Also on May 11, 2022, 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 6, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights in the DELL trademark and service mark established by its ownership of its portfolio of trademark registrations described below for which it has provided evidence in the form of copy registration certificates in an annex to the Complaint.
Complainant furthermore claims rights in the DELL mark arising from its extensive use of the mark on its computers and related goods and services in over 180 countries with $94.2 billion in revenue generated in the fiscal year 2021.
Complainant adds that it is listed at #28 on the Fortune 500 and because of Complainant’s marketing and sales success, Complainant and its DELL mark have become famous in the United States and many other countries, including India where Respondent is situated.
Complainant alleges that the disputed domain name <dell-supportassist.com> is identical or confusingly similar to Complainant’s DELL mark. Specifically submitting that the disputed domain name incorporates the mark DELL in its entirety, tacking on the phrase “support assist,” Complainant contends that it is highly likely to be associated with Complainant which offers a service to its customers designated as “DELL SupportAssist”
Complainant further submits that the generic Top-Level Domain (“gTLD”) extension <.com> is irrelevant in an analysis for Policy 4(a)(i). Citing Trip Network Inc. v. Alviera, Case No. FA 914943 (Forum Mar. 27, 2007) (concluding that the addition of a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis).
Complainant next alleges that Respondent has no rights or legitimate interests in the disputed domain name, arguing that Respondent is not commonly known by the disputed domain name. Complainant asserts that it has not licensed or otherwise permitted Respondent to use its DELL mark, or any other mark owned by Complainant.
Additionally, Complainant submits that Respondent has not used, nor made any demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.
Rather, the disputed domain name is being used for a website that attempts to deceive consumers into thinking that Respondent or Respondent’s websites are, or are affiliated or connected with, or authorized by, Complainant.
Referring to a screen capture of the website to which the disputed domain name resolves which has been adduced in an annex to the Complaint, Complainant specifically alleges that it shows that Respondent’s website prominently displays Complainant’s DELL mark and logos, displays information on, and photographs of, Complainant’s DELL branded products, and features an email address for correspondence, <info@dell-supportassist.com> and a Los Angeles, California business address that are unconnected with Complainant.
Moreover, Respondent’s website prominently features a “Get Started” button, implying that users may click on that button to “get started” using Complainant’s DELL branded products.
Complainant argues that after falsely creating an association with Complainant, Respondent is attempting to gather Internet users’ personal information by displaying the <info@dell-supportassist.com> email address, which incorporates the entire DELL mark, to lure unsuspecting users into contacting Respondent, believing they are contacting Complainant.
Complainant submits that thereby Respondent may illicitly use this email address to collect user email addresses, as well as other information, or commercially benefit by selling it to third parties. See Blackstone TM L.L.C. v. Mita Irelant Ltd., Case No. FA 1314998 (Forum Apr. 30, 2010) (transferring name and stating the respondent’s “attempt to ‘phish’ for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Complainant adds that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name. See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., Case No. FA 1660771 (Forum Mar. 17, 2016) (agreeing that Respondent had not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under its gmailtechnicalsupportnumber.net domain name because the respondent used Complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services for Complainant’s email service and soliciting Internet users’ personal information).
Complainant further submits that Respondent’s inclusion of the DELL mark in the disputed domain name is not nominative fair use, but instead the disputed domain name conveys the false impression that Respondent’s website is authorized by Complainant.
Complainant next alleges that Respondent registered and is using the disputed domain name in bad faith, arguing that the use of a domain name that is confusingly similar to Complainant’s famous DELL mark is in itself evidence of bad faith. See Dell Inc. v. ASTDomains, WIPO Case No. D2007-1819 (“Given the notoriety of the Complainant’s trademark, it is inconceivable to the Panel that the Respondent registered the domain name without prior knowledge of the Complainant and the Complainant’s mark,” finding bad faith and transferring <dellvista.com>).
Further, it is clear that Respondent knew of Complainant’s DELL mark and rights, because Respondent chose to use the disputed domain name <dell-supportassist.com> to host a website that uses Complainant’s DELL mark, displays Complainant’s DELL logos, offers information regarding Complainant’s products, and targets Complainant’s customers.
With regard to the alleged use of the disputed domain name in bad faith, Complainant submits that as noted above, Respondent is attempting to gather Internet users’ personal information after falsely creating an association with Complainant and contends that such facts support a finding of bad faith registration and use of the domain name at issue. See Dell Inc. v. Pritam Singh c/o Pandaje Technical Services Pvt Ltd., FA 1645279 (Forum Dec. 5, 2015) (holding “Respondent is engaged in the tactic of phishing, thereby attempting to gather Internet users’ personal information after falsely creating an association with Complainant” and finding bad faith).
Complainant submits that Respondent’s bad faith is also evidenced by the fact that Respondent owns no trademark or other intellectual property rights in the disputed domain name; the disputed domain name does not consist of the legal name of or a name commonly used to identify Respondent; Respondent has not used the disputed domain name in connection with the bona fide offering of any goods or services; Respondent has made no bona fide noncommercial or fair use of Complainant’s marks in a site accessible under the disputed domain name; and the disputed domain name incorporates exactly the DELL mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a manufacturer and supplier of computer products and services and is the owner and user of the DELL trademark and service mark for which it holds a large portfolio of registrations including:
· United States trademark registration DELL (stylized) registration number 1,860,272, registered on the Principal Register on October 25, 1994 for goods in international class 9;
· United States service mark registration DELL registration number 2,236,785, registered on the Principal Register on April 6, 1999 for services in international class 40;
· United States trademark registration DELL registration number 2,794,705, registered on the Principal Register on December 16, 2003 for goods in international class 9;
· United States service mark registration DELL registration number 2,806,769, registered on the Principal Register on January 20, 2004 for services in international class 37;
· United States service mark registration DELL registration number 2,806,770, registered on the Principal Register on January 20, 2004 for services in international class 42;
· United States trademark registration DELL registration number 2,808,852, registered on the Principal Register on January 27 2004 for goods in international class 2;
· United States trademark and service mark registration DELL (stylized) registration number 3,215,023 registered on the Principal Register on March 6, 2007 for goods and services in integrational classes 2, 9, 36, 37, 40 and 42.
· United States trademark registration DELL (design), registration number 5,510,370, registered on the Principal Register on Registered Jul. 10, 2018 for goods and services in international classes 2, 9, 36, 37, 40, 41, and 42;
· Indian trademark registration DELL registration number 1190375, registered on April 7, 2005 for goods in class 2;
· Indian trademark registration DELL registration number 1190376, registered on April 7, 2005 for goods in class 9;
· Indian service mark DELL, registration number 1239350, registered on September 24 2003 for services in class 37;
· Indian service mark DELL, registration number 1135057, registered on January 28, 2005 for services in class 36.
Complainant has an established Internet presence and maintains a website at <www.dell.com> on which it markets its goods and services.
The disputed domain name was registered on February 3, 2022 and resolves to a website that purports to offer support services for Complainant’s products, while prominently displaying Complainant’s DELL mark and logo.
There is no information available about Respondent, except for that provided in the Complaint, the Registrar’s WhoIs and the information provided by the Registrar in response to the request by the Forum for verification of the registration details of the disputed domain name.
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 provided convincing evidence that it has rights in the DELL trademark and service mark, that it established by its ownership of its portfolio of trademark and service mark registrations described above and the goodwill that it has established in the mark through extensive use in its international business as a manufacturer and supplier of computers and related products and services.
The disputed domain name consists of Complainant’s mark the disputed domain name incorporates the mark DELL in its entirety in combination with the phrase “support assist” and the generic Top-Level Domain “(gTLD”) extension <.com>.
Complainant’s DELL mark is the initial, dominant and only distinctive element in the disputed domain name.
Neither the phrase “support assist” nor the gTLD extension <.com> add any distinguishing character as the former would considered to be a description of services supporting Complainant’s products and the gTLD extension would be considered by Internet users as a necessary technical requirement for a domain name.
This Panel finds therefore that the disputed domain name is confusingly similar to the DELL mark in which Complainant has rights and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
Complainant has made out a prima facie case that Respondent has no rights legitimate interests in the disputed domain name arguing that
· Respondent is not commonly known by the disputed domain name;
· Complainant has not licensed or otherwise permitted Respondent to use its DELL mark, or any other mark owned by Complainant;
· Respondent has not used, nor made any demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services.;
· a screen capture which has been adduced in an annex to the Complaint shows that the website to which the disputed domain name resolves prominently displays Complainant’s DELL marks and logos, displays information on and photographs of Complainant’s DELL branded products, and features an email address for correspondence, info@dell-supportassist.com and a Los Angeles, California business address that are unconnected with Complainant;
· it follows that the disputed domain name is being used for a website that attempts to deceive consumers into thinking that Respondent or Respondent’s websites are, or are affiliated or connected with, or authorized by, Complainant;
· moreover, Respondent’s website prominently features a “Get Started” button, implying that users may click on that button to “get started” using Complainant’s DELL branded products;
· Respondent is attempting to gather Internet users’ personal information by displaying a info@dell-supportassist.com email address, which incorporates the entire DELL mark, to lure unsuspecting users into contacting Respondent, believing they are contacting Complainant;
· Respondent is not making a legitimate noncommercial or fair use of the disputed domain name because Respondent had not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use of the disputed domain; and
· Respondent’s inclusion of DELL in the domain name is not a nominative fair use but instead the disputed domain name falsely conveys the false impression that Respondent’s website is authorized by Complainant.
It is well established that once a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in the domain name at issue, the burden of production shifts to the respondent to prove its rights or legitimate interests.
Respondent has failed to discharge that burden and therefore this Panel must find that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
This Panel finds therefore that Respondent is intentionally using the disputed domain name in bad faith in an attempt 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 web site and the services purported to be offered by Respondent on the website to which the disputed domain name resolves.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has succeeded in the third element of the test in Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, this Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dell-supportassist.com> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman SC
Panelist
Dated: June 8, 2022
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