Dell Inc. v. woyang
Claim Number: FA2212002024056
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Virginia. Respondent is woyang (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delltr.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to Forum electronically on December 14, 2022; Forum received payment on December 14, 2022.
On Dec 16, 2022, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to Forum that the <delltr.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 December 16, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 5, 2023 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@delltr.com. Also on December 16, 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, Forum transmitted to the parties a Notification of Respondent Default.
On January 9, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 <delltr.com> domain name is confusingly similar to Complainant’s DELL mark.
2. Respondent does not have any rights or legitimate interests in the <delltr.com> domain name.
3. Respondent registered and uses the <delltr.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant holds a registration for the well-known DELL mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,860,272 registered October 25, 1994).
Respondent registered the <delltr.com> domain name on May 15, 2022, and used it to redirect users to adult-oriented content. Respondent currently fails to make active use 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”).
Respondent’s <delltr.com> domain name wholly Complainant’s DELL mark and is merely adds “tr” and the “.com” gTLD. These changes do not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). The Panel finds that Respondent’s <delltr.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 lacks rights and legitimate interest in the disputed domain name as Respondent is not commonly known by the disputed domain name and has no license or consent to use the DELL mark. The WHOIS information associated with the disputed domain indicates that Respondent is known as “woyang.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the 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 argues that Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, because it resolves to an inactive page and previously resolved to adult-oriented content. When a disputed domain name resolves to a webpage lacking content, panels have found a lack of rights and legitimate interests due to a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Bloomberg L.P. v SC Media Servs. & Info. SRL, FA 0296583 (Forum, Sept. 2, 2004) (Finding that resolving to an empty page featuring no substantive content or links is evidence that Respondent fails to actively use the disputed domain name, suggesting a lack of rights and legitimate interests in the disputed domain name). Using a disputed domain name to resolve to adult-oriented material is also evidence of a lack of rights and legitimate interests. 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.”) Complainant provides screenshots of the disputed domain name’s resolving webpage currently showing a blank page, and previously showing adult-oriented content. The Panel finds that neither of these uses is a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the disputed domain name in bad faith because Respondent disrupts Complainant’s business by diverting users to its website for commercial gain. Using a disputed domain name to redirect to adult-oriented material evinces bad faith disruption of a complainant’s business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith). Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv).
Complainant demonstrates that Respondent’s disputed domain name now resolves to an inactive website, which the Panel finds is further evidence of bad faith under Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”)
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 <delltr.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 10, 2023
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