DECISION

 

Dell Inc. v. Du Duc Hiep / Cong Ty TNHH MTV Quang Cao Hung Thinh Phat

Claim Number: FA2406002103534

 

PARTIES

Complainant is Dell Inc. ("Complainant"), represented by Kimberly Arriola of Pirkey Barber PLLC, Virginia, USA. Respondent is Du Duc Hiep / Cong Ty TNHH MTV Quang Cao Hung Thinh Phat ("Respondent"), Vietnam.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <dellcambodia.com> ('the Domain Name'), registered with Web Commerce Communications Limited dba WebNic.cc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on June 25, 2024; Forum received payment on June 25, 2024.

 

On June 26, 2024, Web Commerce Communications Limited dba WebNic.cc confirmed by e-mail to Forum that the <dellcambodia.com> Domain Name is registered with Web Commerce Communications Limited dba WebNic.cc and that Respondent is the current registrant of the name. Web Commerce Communications Limited dba WebNic.cc 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 June 26, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 16, 2024 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@dellcambodia.com. Also on June 26, 2024, 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 17, 2024 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

The Complainant's contentions can be summarised as follows:

 

The Complainant is the owner of the famous mark DELL registered, inter alia, in the USA and Cambodia for computers and related goods and services with first use recorded as 1987 in the USA. It operates a web site at www.dell.com.

 

The Domain Name registered in 2017 incorporates the Complainant's DELL mark in its entirety merely adding the generic geographical term 'Cambodia' and the generic top level domain .com neither of which prevents confusing similarity between the Domain Name and the Complainant's registered trade mark.

 

The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.

 

The Domain Name is being used for a web site using the Complainant's DELL mark in its official logo form as a masthead and the Complainant's blue and white trade dress to suggest an affiliation with the Complainant where there is none. The site also offers competing products not manufactured by the Complainant. It is also gathering customer information which could be abused. This is not a bona fide offering of goods or services and the Respondent is not making a legitimate non commercial fair use of the Domain Name. Respondent has registered and is using the Domain Name in bad faith, confusing and diverting Internet users for commercial gain, disrupting the Complainant's business.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

The Complainant is the owner of the famous mark DELL registered, inter alia, in the USA and Cambodia for computers and related goods and services with first use recorded as 1987 in the USA. It operates a web site at www.dell.com.

 

The Domain Name registered in 2017 is being used for a web site using the Complainant's DELL mark in its official logo form as a masthead and the Complainant's blue and white trade dress to suggest an affiliation with the Complainant where there is none. The site also offers competing products not manufactured by the Complainant.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The Domain Name consists of the Complainant's DELL mark the generic geographical term 'Cambodia' and the gTLD.com.

 

Previous panels have found confusing similarity when a respondent merely adds a generic term including geographical terms to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). Accordingly the Panel agrees that the addition of the generic geographical term 'Cambodia' to the Complainant's mark does not prevent confusing similarity between that mark and the Domain Name.

 

The gTLD .com does not serve to distinguish the Domain Name from the Complainant's mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.

 

As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.

 

Rights or Legitimate Interests

The Complainant has not authorised the use of its mark. There is no evidence that the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA 1574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The use of the Domain Name is commercial and so cannot be legitimate non commercial fair use.

 

The Domain Name in itself is confusing appearing on its face to suggest an affiliation with the Complainant and to be the address for its authorised Cambodian site. Additionally, the web site attached to the Domain Name used the Complainant's DELL mark in its logo form as a masthead and the Complainant's blue and white trade dress to appear to be an authorised site of the Complainant while offer competing goods and services not connected with the Complainant. The Panel finds this use was deceptive and confusing. As such it could not amount to the bona fide offering of goods and services. See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services.) See also Chip Merch., Inc. v. Blue Star Elec., D2000-0474 (WIPO Aug. 21, 2000) (finding that the disputed domain names were confusingly similar to Complainant's mark and that Respondent's use of the domain names to sell competing goods was illegitimate and not a bona fide offering of goods).   

 

The Respondent has not answered this Complaint or rebutted the prima facie case evidenced by the Complainant herein.

 

As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

In the opinion of the panelist the use made of the Domain Name is confusing and disruptive in that visitors to the site might reasonably believe the site is connected to or approved by the Complainant as it offered competing products and services using the Complainant's DELL mark(s) in its logo form as a masthead and the Complainant's blue and white trade dress appearing to be an authorised site of the Complainant when it is not. The use of the Complainant's logos and similar trade dress shows actual knowledge by the Respondent of the Complainant, its rights, business and services.

 

Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site and products and services offered on it likely to disrupt the business of the Complainant. See Asbury Auto Group Inc v Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to compete with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of a competing business and was therefore evidence of bad faith and use).  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 Surface Protection Indus., Inc. v. Webposters, D2000-1613 (WIPO Feb. 5, 2001) (finding that, given the competitive relationship between Complainant and Respondent, Respondent likely registered the contested domain name with the intent to disrupt Complainant's business and create user confusion); see also S. Exposure v. S. Exposure, Inc., FA 94864 (Forum July 18, 2000) (finding Respondent acted in bad faith by attracting Internet users to a website that competes with Complainant's business). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA 1612750 (Forum May 13, 2015) ("The Panel agrees that Respondent's use of the website to display products similar to Complainant's, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).").

 

As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paragraphs 4(b)(iii) and (iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <dellcambodia.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Dawn Osborne, Panelist

Dated: July 17, 2024