Dell Inc. v. wei xi
Claim Number: FA2206001999379
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Texas, USA. Respondent is wei xi (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellcares.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 7, 2022; the Forum received payment on June 7, 2022.
On June 7, 2022, Network Solutions, LLC confirmed by e-mail to the Forum that the <dellcares.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 9, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 29, 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@dellcares.com. Also on June 9, 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 July 6, 2022, 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 technology company specializing in the manufacture of computers and related products.
Complainant has rights in the DELL mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <dellcares.com> domain name is confusingly similar to Complainant’s mark because Respondent has incorporated the entire mark, and added the generic word “cares” and the “.com” generic top level domain (“gTLD”).
Respondent does not have rights or legitimate interests in the <dellcares.com> domain because Respondent is not commonly known by the at-issue domain name and is not authorized to use Complainant’s DELL mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the at-issue domain name to host adult-oriented and pornographic content.
Respondent has registered and uses the <dellcares.com> domain name in bad faith because Respondent uses the domain name to create bad faith attraction for commercial gain. In addition, Respondent’s registration of the domain amounts to opportunistic bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in DELL.
Respondent is not affiliated with Complainant and is not authorized to use the DELL mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in DELL.
Respondent uses the at-issue domain name to address a website hosting adult-oriented content and pornography.
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 registration of the DELL mark with the USPTO is sufficient to establish Complainant’s rights in a mark under Policy ¶ 4(a)(i). See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (asserting that Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i)).
Respondent’s <dellcares.com> domain name is composed of Complainant’s entire DELL trademark with the term “cares” appended thereto and with all followed by the generic top-level domain name “.com.” The differences between Complainant’s trademark and Respondent’s domain name do nothing to distinguish the at-issue domain name from Complainant’s trademark. Therefore, the Panel concludes that Respondent’s <dellcares.com> domain name is confusingly similar to Complainant’s DELL trademark pursuant to Policy ¶ 4(a)(i). See Dell Inc. v. pushpender chauhan, FA 1784548 (Forum June 11, 2018) (“Respondent merely adds the term ‘supports’ and a ‘.org’ gTLD to the DELL mark. Thus, the Panel finds Respondent’s disputed domain name is confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).”).
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 <dellcares.com> identifies the domain name’s registrant as ““Wei Xi” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <dellcares.com> domain name or by DELL. The Panel therefore concludes that Respondent is not commonly known by <dellcares.com> for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Additionally, Respondent uses the confusingly similar <dellcares.com> domain name to address a website that hosts pornography. Respondent’s use of the domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA1732665 (Forum July 7, 2017) (holding that “[u]se of a domain name to display adult-oriented images is not considered a bona fide offering of goods or services or a legitimate noncommercial or fair use under the Policy.”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there are circumstances present that allow the Panel to conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Respondent uses the confusingly similar <dellcares.com> domain to attract internet users to Respondent’s <dellcares.com> website for commercial gain by creating confusion between the domain name and Complainant’s trademark. Respondent’s use of <dellcares.com> to imply an affiliation with Complainant and then host adult oriented material and pornographic content on the <dellcares.com> website indicates Respondent’s bad faith registration and use of the <dellcares.com> domain name. See Perot Sys. Corp. v. Perot.net, FA 95312 (Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also, Google Inc. v. Bassano, FA 232958 (Forum Mar. 8, 2004) (holding that the respondent’s use of the <googlesex.info> domain name to intentionally attract Internet users to a website featuring adult-oriented content constituted bad faith registration and use under Policy ¶ 4(b)(iv)).
Additionally and as mentioned above, Respondent registered and uses its confusingly similar <dellcares.com> domain name to bring internet users to a website hosting pornographic material. Such use tarnishes Complainant’s trademark and demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iv). See Toshiba v. ran jiangfei (NAF FA1797650) (holding respondent’s registration and use of the domain names <toshiba-gulf.com> and <driversoftoshiba.com> for pornographic websites constitutes bad faith under UDRP 4(b)(iv)).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellcares.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 8, 2022
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