Dell Inc. v. Muhammad Hamza
Claim Number: FA2306002049858
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Virginia, USA. Respondent is Muhammad Hamza (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellapexcalculator.site>, registered with NameCheap, Inc.
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 June 20, 2023; Forum received payment on June 20, 2023.
On June 20, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <dellapexcalculator.site> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 26, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 17, 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@dellapexcalculator.site. Also on June 26, 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 July 24, 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 sells computers, computer accessories and other computer-related products and services.
Complainant has rights in the DELL mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <dellapexcalculator.site> domain name is identical or confusingly similar to Complainant’s DELL mark as it incorporates the mark in whole and adds the generic or descriptive terms “apex calculator” and the “.site” generic top-level-domain name ("gTLD").
Respondent lacks rights or legitimate interests in the <dellapexcalculator.site> domain name. Respondent is not commonly known by the at-issue domain name, nor has Respondent been authorized by Complainant to use the DELL mark. Respondent has not used the at-issue domain name in connection with a bona fide offering of goods or services as Respondent passes itself off as Complainant by using Complainant’s DELL mark in furtherance of a phishing scheme.
Respondent registered and uses the <dellapexcalculator.site> domain name in bad faith. Respondent’s website disrupts Complainant’s business as Respondent registered the domain name to pass off as Complainant for Respondent’s commercial gain. Further, Respondent had actual knowledge of Complainant’s rights to the DELL mark prior to registering the at-issue domain name. Finally, Respondent uses the domain name to phish for user’s personal and financial information.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in DELL.
Respondent registered the at-issue domain name after Complainant acquired rights in DELL.
Complainant’s has not authorized Respondent to use Complainant’s trademark.
Respondent uses the at-issue domain name to enable a phishing scheme.
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 ownership of a USPTO trademark registration establishes Complainant’s rights in such mark for the purposes of 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)).
The at-issue domain name consists of Complainant’s DELL trademark followed the terms “apex” and ‘calculator’ with all followed by the “.site” top level domain name. The differences between <dellapexcalculator.site> and Complainant’s DELL trademark are insufficient to distinguish the domain name from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds pursuant to Policy ¶ 4(a)(i) that Respondent’s <dellapexcalculator.site> domain name is confusingly similar to Complainant’s DELL trademark. See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of 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 the 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 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)”).
The WHOIS information for <dellapexcalculator.site> identifies the domain name’s registrant as ““Muhammad Hamza” and the record before the Panel contains no evidence suggesting that Respondent is commonly known by <dellapexcalculator.site>. The Panel therefore concludes that Respondent is not commonly known by the <dellapexcalculator.site> domain name for the purposes of Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Forum Sept. 21, 2006) (finding that the respondent was not commonly known by the disputed domain names because the WHOIS information listed “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip't” as the registrant and there was no other evidence in the record to suggest that the respondent was commonly known by the domain names in dispute).
Respondent uses the at-issue domain name to pass itself off as Complainant in furtherance of a phishing scheme. Respondent’s <dellapexcalculator.site> domain name addresses a website displaying Complainant’s trademark, the title “dellapexcalculator.site,” links to a form purported to be Complainant’s “Dell Apex Pricing Calculator,” and among other features contains “Comment” sections that request the site visitors personal information and displays links to Complainant’s genuine website. Respondent thus attempts trick internet users into believing that they are dealing with Complainant so that they may surrender private information to Respondent. The information might then be used by Respondent for Respondent’s benefit. Using the at-issue domain name to impersonate Complainant in furtherance of fraud shows 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, DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
As discussed below without being exhaustive, there are circumstances present from which the Panel may conclude that Respondent acted in bad faith under Policy ¶ 4(a)(iii).
Respondent uses the at-issue domain name to pass itself off as Complainant so that Respondent may then exploit deceived internet users for Respondent’s benefit. Respondent’s conduct is indicative of bad faith registration and use per Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also, Google Inc. v. Domain Admin / Whois Privacy Corp., FA1506001622862 (Forum Aug. 10, 2015) (finding that the respondent’s apparent use of the disputed domain name in furtherance of a ‘phishing’ scheme further established its bad faith registration and use of the disputed domain name under Policy ¶ 4(a)(iii)); see also Juno Online Servs., Inc. v. Iza, FA 245960 (Forum May 3, 2004) (concluding that using a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients” is evidence of bad faith registration and use).
Moreover, Respondent had actual knowledge of Complainant’s rights in the DELL mark when it registered <dellapexcalculator.site> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s use of <dellapexcalculator.site> to impersonate Complainant as discussed elsewhere herein. Respondent’s prior knowledge further indicates Respondent’s bad faith registration and use of <dellapexcalculator.site> 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 <dellapexcalculator.site> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 25, 2023
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