Dell Inc. v. Isaac Goldstein / DOMAIN FOR SALE CHECK AFTERNIC.COM
Claim Number: FA2303002036666
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, US. Respondent is Isaac Goldstein / DOMAIN FOR SALE CHECK AFTERNIC.COM (“Respondent”), HK.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellsuport.com>, registered with DropCatch.com 945 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 Forum electronically on March 21, 2023; Forum received payment on March 21, 2023.
On March 22, 2023, DropCatch.com 945 LLC confirmed by e-mail to Forum that the <dellsuport.com> domain name is registered with DropCatch.com 945 LLC and that Respondent is the current registrant of the name. DropCatch.com 945 LLC has verified that Respondent is bound by the DropCatch.com 945 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 March 22, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 11, 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@dellsuport.com. Also on March 22, 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 April 13, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant, Dell Inc., offers computers, computer accessories, and other computer-related products and services, and runs a family of businesses known as Dell Technologies that offers products and services related to technology, software, security, and more.
Complainant asserts rights to the DELL mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <dellsuport.com> domain name is confusingly similar to Complainant’s DELL mark as it contains the mark in its entirety, merely adding the misspelled descriptive term “suport” and the generic top-level domain (“gTLD”) “.com” to form the at-issue domain name.
Respondent does not have rights or legitimate interests in the <dellsuport.com> domain name. Respondent is not licensed or authorized to use Complainant’s DELL mark or commonly known by the at-issue domain name. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent uses the at-issue domain name to host hyperlinks to third parties. Additionally, Respondent uses the at-issue domain name to direct internet users to malicious software. Furthermore, Respondent’s use of the domain name constitutes typosquatting.
Respondent registered and uses the <dellsuport.com> domain name in bad faith. First, Respondent registered and uses the at-issue domain name to host hyperlinks. Second, Respondent registered and uses the domain name to further the distribution of scareware and malware. Third, Respondent’s registration and use of the domain name constitutes typosquatting. Finally, Respondent registered and uses the at-issue domain name with actual knowledge of Complainant’s rights in the DELL mark.
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 the domain name to pose as Complainant to display pay-per-click links and facilitate the distribution of malware.
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 sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i) as does any of its other trademark registrations worldwide. See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”); see also Bloomberg Finance L.P. v. Jimmy Yau, FA 1764034 (Forum Jan. 25, 2018) (“The Panel finds that complainant has rights in BLOOMBERG mark under Policy ¶ 4(a)(i) based upon its registration with multiple trademark agencies, including the USPTO.”).
Respondent’s <dellsuport.com>domain name is composed of Complainant’s DELL trademark followed by the misspelled term “suport” with all followed by the “.com” generic top-level domain name. The differences between Complainant’s “.com” trademark and Respondent’s domain name materially do nothing to distinguish the at-issue domain name from Complainant’s trademark. Therefore, the Panel concludes that Respondent’s <dellsuport.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 the ‘.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).”); see also Empowered Medical Solutions, Inc. d/b/a QRS-Direct and QRS Magnovit AG v. NULL / QUANTRON RESONANCE SYSTEMS / JIM ANDERSON / HTR / unknown HTR / HTR, FA 1784937 (Forum June 8, 2018) (“Adding or removing descriptive terms or a gTLD is insufficient to differentiate a disputed domain name from a complainant’s mark under 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. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as ““Isaac Goldstein” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <dellsuport.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <dellsuport.com> domain name 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 at-issue 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).
Respondent uses the confusingly similar <dellsuport.com>domain name to address a website pretending to be affiliated with Complainant that displays pay-per-click links to third parties as well as other content. 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 Insomniac Holdings, LLC v. Mark Daniels, FA 1735969 (Forum July 15, 2017) (”Respondent’s use of <edcorlando.xyz> also does not qualify as a bona fide offering… the <edcorlando.xyz> domain name resolves to a site containing pay-per-click hyperlinks and advertisements… Since these kinds of advertisements generate revenue for the holder of a domain name, they cannot be noncommercial; further, they do not qualify as a bona fide offering.”).
Additionally, Respondent uses the <dellsuport.com> domain name to presumably enable the distribution of malicious software. The <dellsuport.com> website has been shown to direct visitors to a “Microsoft Secure Services” webpage with a pop-up stating “Quick Scan,” and “Trojan Threats found: 4.” Several buttons are displayed: “Activate license,” “Cancel,” “Pause,” and “Scheduled Scans.” Complainant suggests that clicking on such buttons may lead to malware being downloaded onto the website visitor’s device. The use of the at-issue domain name to promote malicious software constitutes neither a bona fide offering nor a legitimate use per Policy ¶ 4(c)(i) & (iii). See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017) (“Use of a disputed domain name to offer malicious software does not constitute a bona fide offering or a legitimate use per Policy ¶ 4(c)(i) & (iii).”); see also Hilton Hotels Corp. v. Padonack, FA 1043687 (Forum Sept. 6, 2007) (holding that the use of a disputed domain name to host a website that attempted to download a virus when accessed did not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of a domain name). As support, Complainant
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).
As discussed below without being exhaustive, there is evidence from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First and as mention above regarding rights and legitimate interests, Respondent uses the at-issue domain name to display pay-per-click links. Such use of the domain name is disruptive to Complainant’s business and capitalizes on the confusion that Respondent created between the domain name and Complainant’s trademark designed to drive internet traffic to the at-issue domain name and its website. Respondent’s use of <dellsuport.com> in this manner shows Respondent’s bad faith registration and use of <dellsuport.com> pursuant to Policy¶ 4(b)(iii) and Policy¶ 4(b)(iv). See Plain Green, LLC v. wenqiang tang, FA 1505001621656 (Forum July 1, 2015) (finding that the respondent’s use of the disputed domain name to feature generic third-party hyperlinks constituted bad faith according to Policy ¶ 4(b)(iv)).
Next, Respondent’s <dellsuport.com> domain name delivers internet users to a website that in addition to featuring pay-per-click links serves as a vector for malware. Such use or the domain name tarnishes Complainant’s trademark and demonstrates Respondent’s bad faith under Policy ¶ 4 (b)(iv). See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (“In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.”); see also Microsoft Corporation v. ABK / George Owens a/k/a Rohan / Rohan Suha, FA1211001473573 (Forum Jan. 21, 2013) (holding that because the respondent used the at-issue domain name to attempt to facilitate the download of malicious software to the computers of the website’s visitors, the respondent had registered and used the disputed domain name in bad faith under Policy ¶ 4(a)(iii)).
Moreover, Respondent had actual knowledge of Complainant’s rights in the DELL mark when it registered <dellsuport.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s DELL trademark. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in DELL shows Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellsuport.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 13, 2023
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