DECISION

 

Dell Inc. v. Dengabo Oiboh

Claim Number: FA2501002136221

 

PARTIES

Complainant is Dell Inc. ("Complainant"), represented by S. Erik Combs of Pirkey Barber PLLC, Texas, USA. Respondent is Dengabo Oiboh ("Respondent"), Nigeria.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <delltechnologycapital.com>, registered with Dynadot Inc.

 

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.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on January 21, 2025; Forum received payment on January 21, 2025.

 

On January 22, 2025, Dynadot Inc confirmed by e-mail to Forum that the <delltechnologycapital.com> domain name is registered with Dynadot Inc and that Respondent is the current registrant of the name. Dynadot Inc has verified that Respondent is bound by the Dynadot 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 January 27, 2025, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 18, 2025 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@delltechnologycapital.com. Also on January 27, 2025, 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 February 19, 2025, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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

Complainant states that it is a world leader in computers, computer accessories, and other computer-related products and services, including leasing. It has also developed a family of businesses, collectively known as Dell Technologies, that offers products and services related to technology, software, security, and more. Dell Technologies provides the essential infrastructure for organizations to build their digital future, transform IT, and protect their most important asset, information. Over the years, Complainant has invested heavily in marketing under its marks, devoting hundreds of millions of dollars to advertising and promoting its products and services through many media in many countries. Complainant has used television, radio, magazines, newspapers, and the Internet as marketing media. Complainant has been, and continues to be, extremely successful. It sells its products and services in over 180 countries. Complainant has generated more than $88.4 billion in revenue in Fiscal Year 2024 and is #48 on the Fortune 500. Complainant has used the famous mark DELL, as well as various other marks that include the word DELL, such as DELL TECHNOLOGIES, for many years for laptops, desktops, computer parts and accessories, computer service, repair, and support, and other computer-related products and services. Since at least 2016, Dell has used the mark DELL TECHNOLOGIES CAPITAL, and the associated website at <www.delltechnologiescapital.com>, in connection with an investment arm focused on working with people and companies building foundational technologies for the enterprise space. To date, Dell Technologies Capital has invested more than $1.7 billion in companies, 9 of which have gone public, and more than 85 of which have been acquired. As a consequence of Complainant's marketing and sales success, Complainant and its marks have become famous in the United States and many other countries. Complainant has rights in the marks DELL and DELL TECHNOLOGIES through their registration in the United States in, respectively, 1994 and 2019.

 

Complainant alleges that the disputed domain name is confusingly similar to its DELL mark as it incorporates the mark in its entirety, merely adding the generic/descriptive terms "technology" and "capital", together with the ".com" generic top-level domain ("gTLD"). Complainant also alleges that the disputed domain name is confusingly similar to its DELL TECHNOLOGIES mark, since it consists of the singular version of the mark, merely adding the generic/descriptive term "capital" and the ".com" generic top-level domain ("gTLD"). Complainant cites UDRP precedents to support its position.

 

According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant's mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, the disputed domain name does not resolve to an active website, but it is used in furtherance of a fraudulent email phishing scheme. Specifically, Respondent sent a fraudulent email using the <delltechnologycapital.com> domain name, wherein Respondent prominently displays the DELL marks and claims to "work with Dell Technologies as an Analyst Officer." Respondent's email signature in the communication states that the email originates from a legitimate employee of Dell Technologies—and includes the address of Dell Technologies' headquarters in Round Rock, Texas, and the phone number "5202018922," which is not associated with Complainant. Despite the claims in the email, Respondent has no affiliation with Complainant. In the body of the email, Respondent claims to be engaging in a "job propos[al]" that involves "working as a private collector" for "collecting debt ow[ed] to [Respondent's] company." In addition to this solicitation, the email provides a link to the fraudulent email URL. It appears this email is meant to mislead recipients of Respondent's fraudulent emails into believing they are speaking to a legitimate Dell Technologies employee. Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The disputed domain name is used in furtherance of a fraudulent email phishing scheme. Respondent had actual knowledge of Complainant's mark. Respondent used a privacy service. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark DELL and uses it to market computers, computer accessories, and other computer-related products and services, including leasing.

 

Complainant's rights in its mark date back to 1994.

 

The disputed domain name was registered in 2024.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The disputed domain name is used in furtherance of a fraudulent email phishing scheme. The signature block of the fraudulent emails displays Complainant's mark and the actual physical address of one of Complainant's offices.

 

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 disputed domain name incorporates Complainant's DELL mark in its entirety, merely adding the generic/descriptive terms "technology" and "capital", together with the ".com" generic top-level domain ("gTLD"). Under Policy ¶ 4(a)(i), adding a gTLD and/or generic/descriptive terms, is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Respondent is not licensed or otherwise authorized to use Complainant's mark and is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (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). Here, the WHOIS information for the disputed domain names lists the registrant as "Dengabo Oiboh". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).

 

The disputed domain name resolves to an inactive website and Respondent uses the disputed domain name to conduct a fraudulent email phishing scheme. Specifically, Respondent sent a fraudulent email using the disputed domain name, wherein Respondent claims to "work with Dell Technologies as an Analyst Officer"; in the body of the email, Respondent claims to be engaging in a "job propos[al]" that involves "working as a private collector" for "collecting debt ow[ed] to [Respondent's] company". Panels have found such use by a respondent consists of neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum February 26, 2015) ("The Panel agrees that the respondent's apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii)."); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) ("The Panel finds that Respondent's attempt to "phish" for users' personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)."). Therefore, the Panel finds that Respondent's use of the disputed domain name constitutes neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as noted above, Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme. This behavior is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). See Yahoo! Inc. v. Kalra, FA 1650447 (Forum Dec. 31, 2015); Qatalyst Partners LP v. Devimore, FA 1393436 (Forum Jul. 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use.); see also National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum Sept. 22, 2014) (finding bad faith where respondent fraudulently attempted to induce wire transfers by sending e-mails purporting to be from complainant's President and CEO); see also Capital One Financial Corporation and Capital One Bank v. Austin Howel, FA 289304 (Forum Aug. 11, 2004) (finding bad faith where respondent used complainant's mark to fraudulently induce transfer of credit and personal identification information). Consequently, the Panel finds that Respondent registered and is using the disputed domain name in bad faith in the sense of the Policy.

 

Further, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the signature block of the fraudulent emails displays Complainant's mark and the actual physical address of one of Complainant's offices. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); 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). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).

 

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 <delltechnologycapital.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: February 19, 2025