Dell Inc. v. bin yue / yuebin
Claim Number: FA2301002029526
Complainant is Dell Inc. (“Complainant”), United States of America (“United States”), represented by Caitlin Costello, United States. Respondent is bin yue / yuebin (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellfinancialservies.com> (the “disputed domain name”), registered with Web Commerce Communications Limited dba WebNic.cc (the “Registrar”).
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to Forum electronically on January 27, 2023; Forum received payment on January 27, 2023.
On January 30, 2023, the Registrar confirmed by e-mail to Forum that the <dellfinancialservies.com> disputed domain name is registered with Web Commerce Communications Limited dba WebNic.cc and that Respondent is the current registrant of the name. The Registrar has verified that Respondent is bound by the Web Commerce Communications Limited dba WebNic.cc 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 February 6, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 27, 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@dellfinancialservies.com. Also on February 6, 2023, 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 March 6, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Lynda M. Braun 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a world leader in computers, computer accessories, and other computer-related products and services. The Complainant has also developed a family of businesses that offers products and services related to technology, software, security, and more.
Complainant has used the famous DELL trademark, as well as various other marks that incorporate the DELL trademark, for many years for laptops, desktops, computer parts and accessories, computer service, repair, and support, and other computer-related products and services.
Complainant has rights in the DELL FINANCIAL SERVICES mark, among many others, through trademark registration with the United States Patent and Trademark Office (“USPTO”) (Registration No. 2,333,902, registered on March 21, 2000).[i]
The aforementioned trademark will hereinafter be referred to as the “DELL FINANCIAL SERVICES Mark”.
In addition, Complainant owns the official United States website for the DELL trademark at “www.dell.com”, and the official China website for the DELL trademark at “www.dell.com/zh-cn.”
Complainant claims that Respondent’s disputed domain name is identical or confusingly similar to the DELL FINANCIAL SERVICES Mark as it merely removes the letter “c” and adds the generic Top-Level Domain (“gTLD”) “.com”. Complainant also contends that Respondent lacks rights or legitimate interests in the disputed domain name since Respondent is not licensed, authorized or otherwise permitted to use Complainant’s DELL FINANCIAL SERVICES Mark and is not commonly known by the disputed domain name. Moreover, Complainant contends that Respondent registered and is using the disputed domain name in bad faith because, among other things, Respondent’s disputed domain name causes confusion as to the affiliation or ownership of the name and resolving site and Respondent also displays adult-oriented on its resolving website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant holds trademark rights in the DELL FINANCIAL SERVICES Mark. The Panel also finds that the disputed domain name is confusingly similar to Complainant’s DELL FINANCIAL SERVICES Mark as it merely removes the letter “c” from the term “services” in the disputed domain name, and then adds the gTLD “.com”. Further, the Panel concludes that Respondent lacks rights or legitimate interests in the disputed domain name and that Respondent registered and is using the disputed domain name 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 disputed domain name should be cancelled or transferred:
(1) the disputed 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 disputed domain name; and
(3) the disputed 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 Panel finds that the disputed domain name is confusingly similar to the DELL FINANCIAL SERVICES Mark as set forth below.
Complainant claims rights in the DELL FINANCIAL SERVICES Mark through its trademark registration of DELL FINANCIAL SERVICES with the USPTO (Registration No. 2,333,902, registered on March 21, 2000). Registration of a mark with the USPTO confers upon a complainant trademark rights for purposes of the Policy paragraph 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
The disputed domain name consists of the DELL FINANCIAL SERVICES Mark, although with the minor misspelling[ii] of the term SERVICES (removing the letter “c”) and followed by the “.com” gTLD. Removing a letter from a mark to create a misspelling in a disputed domain name does not distinguish a disputed domain name from a mark. See Myspace, Inc. v. Kang, FA 672160 (Forum June 19, 2006) (finding that the <myspce.com> disputed domain name was confusingly similar to the complainant’s MYSPACE mark and the slight difference in spelling did not reduce the confusing similarity).
Moreover, a gTLD is a technical requirement and is irrelevant for purposes of Policy paragraph 4(a)(i) analysis. See Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy paragraph 4(a)(i) analysis because domain name syntax requires TLDs.”). Given that Respondent only misspells the DELL FINANCIAL SERVICES mark through the removal of a letter and then adds a gTLD, the Panel finds the disputed domain name confusingly similar to Complainant’s trademark under Policy ¶ 4(a)(i).
Accordingly, the Panel finds that Policy paragraph 4(a)(i) has been established by Complainant.
In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy paragraph 4(a)(ii), and then the burden shifts to Respondent to show that it has rights or legitimate interests. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy paragraph 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”).
In this case, Respondent did not carry its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name as it did not submit a response to the Complaint, but given the facts of this case, the Panel finds that Respondent would have been hard pressed to furnish availing arguments had it chosen to respond.
In support, the Panel finds that Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed or otherwise permitted Respondent to use its DELL FINANCIAL SERVICES Mark in the disputed domain name. In addition, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Under Policy paragraphs 4(c)(i) and (iii), using a disputed domain name and its resolving website to divert Internet traffic to a site with content unrelated to Complainant is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use.
Previous Panels have found that use of a disputed domain name to divert customers away from a complainant by causing confusion as to the source or affiliation of a disputed domain name does not constitute either a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Specifically, the website to which the disputed domain name resolves contains adult-oriented content. The use of a disputed domain name to redirect to a website with adult-oriented content does not satisfy Policy paragraph 4(c)(i) or (iii). See Altria Group, Inc. and Altria Group Distribution Company v. xiazihong, FA 1732665 (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 from Respondent’s website, which features adult content and/or links to adult content. Therefore, Respondent’s diversion of Internet users to a site featuring pornographic materials demonstrates that Respondent lacks a bona fide offering of goods or services and legitimate noncommercial or fair use of the <dellfinancialservies.com> disputed domain name under Policy paragraphs 4(c)(i) and (iii).
Accordingly, the Panel finds that Policy paragraph 4(a)(ii) has been established by Complainant.
The Panel concludes that, based on the record, Respondent registered and is using the disputed domain name in bad faith.
First, the Panel finds that Respondent is redirecting Internet traffic to a site with content unrelated to Complainant, specifically, adult-oriented content. Panels have held that a respondent’s use of a disputed domain name to feature adult-oriented material harms a Complainant and evinces bad faith under Policy paragraph 4(a)(iii). See Wells Fargo & Co. v. Party Night Inc., FA 144647 (Forum Mar. 18, 2003) (finding that the respondent’s tarnishing use of the disputed domain names to redirect Internet users to adult-oriented websites was evidence that the domain names were being used in bad faith); see also Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA 1502001603444 (Forum Mar.19, 2015) (“Respondent’s use of the disputed domain name to feature adult-oriented advertisements is further evidence of bad faith under Policy paragraph 4(a)(iii).”).
Second, the Panel concludes that Respondent has registered and is using the disputed domain name in bad faith because Respondent is attempting to attract, for commercial gain, Internet users to Respondent’s resolving website by creating a likelihood of confusion with Complainant’s DELL FINANCIAL SERVICES Mark as to the source, sponsorship, affiliation, or endorsement of the content thereon. Bad faith under Policy paragraph 4(b)(iv) can be found where a respondent uses a confusingly similar domain name to falsely indicate an association with a complainant. See AOL LLC v. iTech Ent, LLC, FA 726227 (Forum July 21, 2006) (finding that the respondent took advantage of the confusing similarity between the <theotheraol.com> and <theotheraol.net> domain names and the complainant’s AOL mark, which indicates bad faith registration and use pursuant to Policy paragraph 4(b)(iv)).
Third, the fame of the DELL FINANCIAL SERVICES Mark, which was used and registered by Complainant in advance of Respondent’s registration of the disputed domain name, renders it wholly implausible that Respondent created the disputed domain name independently. Moreover, where a disputed domain name is so obviously connected with a well-known name, product or service, its use by someone with no connection to the name, product or service indicates opportunistic bad faith. Therefore, the Panel concludes that Respondent had actual knowledge of Complainant’s rights in the DELL FINANCIAL SERVICES Mark, and this constitutes bad faith under Policy paragraph 4(a)(iii). It therefore strains credulity to believe that Respondent had not known of the Complainant or its DELL FINANCIAL SERVICES Mark when registering the disputed domain name. Thus, as here, prior knowledge of a complainant’s trademark before registering a confusingly similar domain name is sufficient to find bad faith under Policy paragraph 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (finding actual knowledge due to the domain name chosen and the use made of it).
Finally, Respondent’s use of typosquatting when registering the disputed domain name indicates registration and use in bad faith. See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”). Here, Respondent merely removes the letter “c” in the term “services”, demonstrating bad faith registration and use pursuant to Policy paragraph 4(a)(iii).
Accordingly, the Panel finds that Policy paragraph 4(a)(iii) has been established by 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 <dellfinancialservies.com> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: March 16, 2023
[i] Complainant also has rights in the DELL mark in China, where the Respondent allegedly resides. The marks include China Registration Nos. 612,102, 910,585, 1,391,614, and 1,391,653.
[ii] This misspelling is an example of typosquatting, a situation in which a domain name includes a misspelled registered trademark.
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