DECISION

 

Dell Inc. v. BHUWANESHWAR KC / A A / WW WW / AA AA / MA BN / ABC CBA / ASD AA / SS SS / SS S / HH HHH / AAA CCC / AAA SSS / acb nnn / abc abc / ABC VVCX / ZZZ ZZZ / ABC BBB

Claim Number: FA1605001675101

 

PARTIES

Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA.  Respondent is BHUWANESHWAR KC / A A / WW WW / AA AA / MA BN / ABC CBA / ASD AA / SS SS / SS S / HH HHH / AAA CCC / AAA SSS / acb nnn / abc abc / ABC VVCX / ZZZ ZZZ / ABC BBB (“Respondent”), India.

 

REGISTRAR AND DISPUTED DOMAIN NAMES

The domain names at issue are <dell-backup-recovery.org>, <dell-bios-update.org>, <dell-chat-support.com>, <dell-chat-support.org>, <dell-chat.org>, <dell-com-support.com>, <dell-computer-support.com>, <dell-computer-support.org>, <dell-customer-care.tech>, <dell-customer-service-number.org>, <dell-customer-support.com>, <dell-customer-support.org>, <dell-customersupport.org>, <dell-data-protection.org>, <dell-data-recovery.tech>, <dell-datasafe.org>, <dell-downloads.org>, <dell-driver-download.org>, <dell-driver-support.com>, <dell-driver-update.org>, <dell-driver.org>, <dell-driverdownload.org>, <dell-drivers-download.org>, <dell-drivers-downloads.org>, <dell-driversdownload.org>, <dell-driversupport.org>, <dell-error-code.tech>, <dell-inspiron-drivers.tech>, <dell-latitude-drivers.tech>, <dell-live-chat.tech>, <dell-optiplex-drivers.tech>, <dell-phone-number.org>, <dell-printer-support.com>, <dell-printerdrivers.org>, <dell-pro-support.com>, <dell-recovery-disk.org>, <dell-recovery-partition.org>, <dell-recovery.tech>, <dell-serial-number.org>, <dell-service-center.org>, <dell-service-code.org>, <dell-sonicwall-support.tech>, <dell-support-assist.com>, <dell-support-center.org>, <dell-support-chat.com>, <dell-support-drivers.com>, <dell-support-drivers.org>, <dell-support-number.com>, <dell-support-number.org>, <dell-support-phone-number.com>, <dell-support-phone-number.org>, <dell-support-phonenumber.org>, <dell-supportdrivers.org>, <dell-system-restore.tech>, <dell-system-update.org>, <dell-tech-support-chat.com>, <dell-tech-support-number.com>, <dell-tech-support.com>, <dell-technical-support.com>, <dell-technical-support.org>, <dell-technicalsupport.org>, <dell-touchpad-driver.org>, <dell-warranty-lookup.org>, <dell-warranty-status.org>, <dell-warranty-support.tech>, <dell-webcam-software.org>, <dellbackup-recovery.org>, <dellbios-update.org>, <dellchat-support.org>, <dellcustomer-service-number.org>, <dellcustomer-servicenumber.org>, <dellcustomer-support.org>, <delldata-protection.org>, <delldriver-download.org>, <delldriver-support.org>, <delldriver-update.org>, <delldrivers-download.org>, <delldrivers-downloads.org>, <delldriversdownload.org>, <dellprinter-drivers.org>, <dellrecovery-disk.org>, <dellrecovery-partition.org>, <dellserial-number.org>, <dellservice-center.org>, <dellservice-code.org>, <dellsupport-center.org>, <dellsupport-drivers.org>, <dellsupport-number.org>, <dellsupport-phone-number.org>, <dellsupportcenter.org>, <dellsystem-update.org>, <delltouchpad-driver.org>, <dellwarranty-lookup.org>, <dellwebcam-software.org>, <my-dell-downloads.org>, <my-delldownloads.org>, <reset-dell-laptop.tech>, and <support-dell.org>, registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

Houston Putnam Lowry, Chartered Arbitrator, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on May 16, 2016; the Forum received payment on May 16, 2016.

 

On May 16, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dell-backup-recovery.org>, <dell-bios-update.org>, <dell-chat-support.com>, <dell-chat-support.org>, <dell-chat.org>, <dell-com-support.com>, <dell-computer-support.com>, <dell-computer-support.org>, <dell-customer-care.tech>, <dell-customer-service-number.org>, <dell-customer-support.com>, <dell-customer-support.org>, <dell-customersupport.org>, <dell-data-protection.org>, <dell-data-recovery.tech>, <dell-datasafe.org>, <dell-downloads.org>, <dell-driver-download.org>, <dell-driver-support.com>, <dell-driver-update.org>, <dell-driver.org>, <dell-driverdownload.org>, <dell-drivers-download.org>, <dell-drivers-downloads.org>, <dell-driversdownload.org>, <dell-driversupport.org>, <dell-error-code.tech>, <dell-inspiron-drivers.tech>, <dell-latitude-drivers.tech>, <dell-live-chat.tech>, <dell-optiplex-drivers.tech>, <dell-phone-number.org>, <dell-printer-support.com>, <dell-printerdrivers.org>, <dell-pro-support.com>, <dell-recovery-disk.org>, <dell-recovery-partition.org>, <dell-recovery.tech>, <dell-serial-number.org>, <dell-service-center.org>, <dell-service-code.org>, <dell-sonicwall-support.tech>, <dell-support-assist.com>, <dell-support-center.org>, <dell-support-chat.com>, <dell-support-drivers.com>, <dell-support-drivers.org>, <dell-support-number.com>, <dell-support-number.org>, <dell-support-phone-number.com>, <dell-support-phone-number.org>, <dell-support-phonenumber.org>, <dell-supportdrivers.org>, <dell-system-restore.tech>, <dell-system-update.org>, <dell-tech-support-chat.com>, <dell-tech-support-number.com>, <dell-tech-support.com>, <dell-technical-support.com>, <dell-technical-support.org>, <dell-technicalsupport.org>, <dell-touchpad-driver.org>, <dell-warranty-lookup.org>, <dell-warranty-status.org>, <dell-warranty-support.tech>, <dell-webcam-software.org>, <dellbackup-recovery.org>, <dellbios-update.org>, <dellchat-support.org>, <dellcustomer-service-number.org>, <dellcustomer-servicenumber.org>, <dellcustomer-support.org>, <delldata-protection.org>, <delldriver-download.org>, <delldriver-support.org>, <delldriver-update.org>, <delldrivers-download.org>, <delldrivers-downloads.org>, <delldriversdownload.org>, <dellprinter-drivers.org>, <dellrecovery-disk.org>, <dellrecovery-partition.org>, <dellserial-number.org>, <dellservice-center.org>, <dellservice-code.org>, <dellsupport-center.org>, <dellsupport-drivers.org>, <dellsupport-number.org>, <dellsupport-phone-number.org>, <dellsupportcenter.org>, <dellsystem-update.org>, <delltouchpad-driver.org>, <dellwarranty-lookup.org>, <dellwebcam-software.org>, <my-dell-downloads.org>, <my-delldownloads.org>, <reset-dell-laptop.tech>, and <support-dell.org> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names.  GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 May 18, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 7, 2016 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@dell-backup-recovery.org, postmaster@dell-bios-update.org, postmaster@dell-chat-support.com, postmaster@dell-chat-support.org, postmaster@dell-chat.org, postmaster@dell-com-support.com, postmaster@dell-computer-support.com, postmaster@dell-computer-support.org, postmaster@dell-customer-care.tech, postmaster@dell-customer-service-number.org, postmaster@dell-customer-support.com, postmaster@dell-customer-support.org, postmaster@dell-customersupport.org, postmaster@dell-data-protection.org, postmaster@dell-data-recovery.tech, postmaster@dell-datasafe.org, postmaster@dell-downloads.org, postmaster@dell-driver-download.org, postmaster@dell-driver-support.com, postmaster@dell-driver-update.org, postmaster@dell-driver.org, postmaster@dell-driverdownload.org, postmaster@dell-drivers-download.org, postmaster@dell-drivers-downloads.org, postmaster@dell-driversdownload.org, postmaster@dell-driversupport.org, postmaster@dell-error-code.tech, postmaster@dell-inspiron-drivers.tech, postmaster@dell-latitude-drivers.tech, postmaster@dell-live-chat.tech, postmaster@dell-optiplex-drivers.tech, postmaster@dell-phone-number.org, postmaster@dell-printer-support.com, postmaster@dell-printerdrivers.org, postmaster@dell-pro-support.com, postmaster@dell-recovery-disk.org, postmaster@dell-recovery-partition.org, postmaster@dell-recovery.tech, postmaster@dell-serial-number.org, postmaster@dell-service-center.org, postmaster@dell-service-code.org, postmaster@dell-sonicwall-support.tech, postmaster@dell-support-assist.com, postmaster@dell-support-center.org, postmaster@dell-support-chat.com, postmaster@dell-support-drivers.com, postmaster@dell-support-drivers.org, postmaster@dell-support-number.com, postmaster@dell-support-number.org, postmaster@dell-support-phone-number.com, postmaster@dell-support-phone-number.org, postmaster@dell-support-phonenumber.org, postmaster@dell-supportdrivers.org, postmaster@dell-system-restore.tech, postmaster@dell-system-update.org, postmaster@dell-tech-support-chat.com, postmaster@dell-tech-support-number.com, postmaster@dell-tech-support.com, postmaster@dell-technical-support.com, postmaster@dell-technical-support.org, postmaster@dell-technicalsupport.org, postmaster@dell-touchpad-driver.org, postmaster@dell-warranty-lookup.org, postmaster@dell-warranty-status.org, postmaster@dell-warranty-support.tech, postmaster@dell-webcam-software.org, postmaster@dellbackup-recovery.org, postmaster@dellbios-update.org, postmaster@dellchat-support.org, postmaster@dellcustomer-service-number.org, postmaster@dellcustomer-servicenumber.org, postmaster@dellcustomer-support.org, postmaster@delldata-protection.org, postmaster@delldriver-download.org, postmaster@delldriver-support.org, postmaster@delldriver-update.org, postmaster@delldrivers-download.org, postmaster@delldrivers-downloads.org, postmaster@delldriversdownload.org, postmaster@dellprinter-drivers.org, postmaster@dellrecovery-disk.org, postmaster@dellrecovery-partition.org, postmaster@dellserial-number.org, postmaster@dellservice-center.org, postmaster@dellservice-code.org, postmaster@dellsupport-center.org, postmaster@dellsupport-drivers.org, postmaster@dellsupport-number.org, postmaster@dellsupport-phone-number.org, postmaster@dellsupportcenter.org, postmaster@dellsystem-update.org, postmaster@delltouchpad-driver.org, postmaster@dellwarranty-lookup.org, postmaster@dellwebcam-software.org, postmaster@my-dell-downloads.org, postmaster@my-delldownloads.org, postmaster@reset-dell-laptop.tech, and postmaster@support-dell.org.  Also on May 18, 2016, 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, the Forum transmitted to the parties a Notification of Respondent Default.

 

On June 14, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Houston Putnam Lowry, Chartered Arbitrator, as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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, the 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 the domain names be transferred from Respondent to Complainant.

 

Preliminary Issue: Multiple Respondents

In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases.  Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” 

 

Complainant believes the domain names in dispute are all under the control of a common registrant who has been deliberately engaging in a pattern of providing false contact information in order to frustrate the UDRP process. As detailed below, the bulk of the domain names are registered to Bhuwaneshwar KC. The remainder are believed to be under a single registrant’s control because: a) the Registrant Emails listed for these domain names all share a common address format of g0XX@usa-technology.com, where the ‘XX’ is replaced with a two digit number; b) the Registrant Names of record are gibberish consisting of repeated or consecutive letters that do not form words or contain any other indicia of legitimacy; and c) the listed Registrant Phone numbers all have far more repeated or consecutive digits than would be typical for randomly selected legitimate phone numbers, suggesting that they were just arbitrarily typed in to populate the space in the application form.

 

Complainant believes that all of the disputed domain names are under Bhuwaneshwar’s control because the websites hosted on these domain names all: a) have a common appearance and offer the same services; b) employ the same live chat tool (created by Zopim);  c) are hosted by the same webhost (Linode, LLC); and d) encourage visitors to call the same telephone number (1-855-887-0097).

 

Respondent has not contested Complainant’s claims.  In light of the absence of contradicting evidence in the record, the Panel finds all of the domain names are effectively controlled by the same person and/or entity, who is operating under several aliases.

 

PARTIES' CONTENTIONS

A. Complainant

            Trademark/Service Mark Information:

                       

i.              Dell and its Business

 

Complainant Dell Inc. (“Complainant” or “Dell”) is a world leader in computers, computer accessories, and other computer-related products and services.  Over the years, Dell 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.  Dell has used television, radio, magazines, newspapers, and the internet as marketing media.  Dell has been, and continues to be, extremely successful.  Dell sells its products and services in over 180 countries.  For several years, Dell has been the world’s largest direct seller of computer systems.  As a consequence of Dell’s marketing and sales success, Dell and its marks have become famous in the United States and many other countries, including India.  More information about Dell can be found at www.dell.com and www.dell.co.in, Dell’s official website for India.  Moreover, Dell was recently named by Adweek as #15 of the “Most Loved Companies” in the world. See http://www.adweek.com/news/advertising-branding/check-out-top-100-beloved-brands-last-decade-153026).

           

Complainant has used the famous mark DELL, as well as various other marks that include the word DELL (the “DELL Marks”), for many years for laptops, desktops, computer parts and accessories, computer service and support, and other computer-related products and services.  For example, Dell offers technical and repair services for its laptops, desktops, and other products on its website at www.support.dell.com.  Further, Dell has long used the marks INSPIRON, LATITUDE, OPTIPLEX, PROSUPPORT, SONICWALL, and XPS in connection with its products and services. Dell owns many trademark registrations for its marks in numerous countries.  See, e.g., U.S. Reg. Nos. 1,424,688, 1,860,272, 1,977,038, 2,236,785, 2,254,835, 2,362,260, 2,750,890, 2,773,176, 2,794,705, 2,806,769, 2,806,770, 2,808,852, 3,186,859, 3,215,023, 3,219,615, 3,430,697, 3,449,467, 3,465,293, 4,897,209.

 

ii.         Dell’s Presence in India

 

With more than 22 percent of the market, Dell is the number two PC maker in India.  See, e.g., http://www.idc.com/getdoc.jsp?containerId=prIN25465215, International Data Corporation (2015).  In fact, Dell has been one of the leaders in the India PC market for several years.  See, e.g., Anurag Prasad, India's top 5 PC makers by market share, Rediff Business (2011), http://www.rediff.com/business/slide-show/slide-show-1-tech-largest-pc-makers-in-india/20111111.htm.

 

            FACTUAL AND LEGAL GROUNDS

 

This Complaint is based on the following factual and legal grounds:

 

a.         The disputed domain names are identical or confusingly similar to Complainant’s DELL Marks.  Specifically, the domain names each incorporate the famous mark DELL in its entirety, merely tacking on hyphens and generic terms (and combinations thereof) highly likely to be associated with Dell and its goods and services, such as “assist,” “backup,” “bios,” “care,” “chat,” “com,” “computer,” “customer,” “data,” “data safe,” “disk,” “download(s),” “driver(s),” “error code,” “laptop,” “live chat,” “lookup,” “my,” “(phone) number,” “partition,” “printer,” “protection,” “recovery,” “reset,” “restore,” “serial number,” “service center,” “service code,” “service number,” “software,” “status,” “support,” “system,” “tech,” “technical,” “touchpad,” “update,” “warranty,” and “webcam.”  Several of the domain names also include other Dell trademarks, such as INSPIRON (i.e., dell-inspiron-drivers.tech), LATITUDE (i.e., dell-latitude-drivers.tech), OPTIPLEX (i.e., dell-optiplex-drivers.tech), PROSUPPORT (i.e., dell-pro-support.com), and SONICWALL (i.e., dell-sonicwall-support.tech).  Further, the descriptive or generic top-level extension “.tech” does not distinguish the domain names from the DELL Marks.^[1]  Similarly, the presence of the generic top-level domains “.com” and “.org” is irrelevant here.^[2]

 

b.         Respondent has no rights or legitimate interests in the domain names. 

 

i.          Respondent has not used, nor made any demonstrable preparations to use, the domain names or a name corresponding to the domain names in connection with a bona fide offering of goods or services.  Rather, the domain names are being used for websites that attempt to deceive consumers into thinking that Respondent or Respondent’s business is Complainant or is at least affiliated or connected with, or authorized by, Complainant. 

 

For example, Respondent’s website located at dell-customer-support.org prominently displays the DELL mark at the top of its homepage along with the words “Customer Support”^[3]

 

Respondent’s website prominently displays pictures of Dell products and promotes Respondent’s computer support services, which consumers are highly likely to associate with Complainant, while referring to Respondent as “DELL CUSTOMER SUPPORT.”  Respondent’s website also features links to Complainant’s official Facebook and Twitter pages, exacerbating the likelihood that consumers will mistakenly assume there is a connection between Respondent and Dell. Further, the website at dell-customer-support.com includes a live chat tool that purportedly allows visitors to “CHAT WITH Dell Customer Support,” and prominently displays “DELL SUPPORT,” but is not linked, or in any way connected, to Complainant’s support team or services.  In addition, Respondent’s website encourages visitors to call DELL CUSTOMER SUPPORT at 1-855-887-0097, a number not associated with Complainant.

 

Respondent uses highly similar or identical webpages which feature nearly identical elements at virtually all^[4] of the other numerous disputed domain names.

 

ii.         Respondent is not an authorized service provider of Complainant’s computer repair services.  In addition, Complainant has not licensed or otherwise permitted Respondent to use its DELL Marks, or any other mark owned by Complainant. ^[5]

 

iii.        Respondent is not commonly known by the domain names at issue.

 

iv.        Respondent is not making a legitimate noncommercial or fair use of the domain names.

 

c.         Respondent registered and is using the domain names in bad faith.

 

i.          The use of domain names confusingly similar to Complainant’s famous DELL Marks is evidence of bad faith.^[6] Further, it is clear that Respondent knew of Complainant’s famous DELL Marks and rights based on Respondent’s use of the numerous disputed domain names, featuring several of Complainant’s trademarks, to host websites that prominently display pictures of Complainant’s products, link to Complainant’s official social media pages, and offer competing computer support services.

 

ii.         The fact that Respondent registered at least 98 domain names that contain the DELL marks is also evidence of bad faith.^[7]

 

iii.        Not only are the disputed domain names highly likely to cause confusion, but Respondent’s bad faith is clearly demonstrated by the evidence explained in paragraph 7(b)(i), above, which shows that the domain names are being used for websites which attempt to deceive consumers into thinking that Respondent or Respondent’s business is, or is associated with, Dell.^[8]

 

iv.        By using the disputed domain names for websites displaying the DELL Marks and images of Complainant’s products, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s websites by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s websites.

 

v.         Respondent’s use of confusingly similar domain names to promote services that compete with those of Complainant is further evidence of Respondent’s bad faith.^[9]

 

vi.        Respondent’s inclusion of an inconspicuous “disclaimer” on the webpages, in noticeably smaller font, does not mitigate against a finding of bad faith.^[10] For example, Respondent’s website at dell-customer-support.com states “Disclaimer: Dell Customer Support is a total independent and completely autonomous technical service provider. We provide technical support for all the major vendors and third party products. The third party trademarks, logos, names of the brands and the products have been given for information purpose only and we in no means are advocating any affiliation or connection to any of the product or brand. Neither do we sponsor any product any brand or any service. Hence Dell Customer Support does not claim any sponsorship by any of the third party. If your product is under warranty, the repair service maybe available free from the brand owner.” Such unclear language is not likely to alleviate the consumer confusion created by Respondent’s use of confusingly similar domain names and websites as described in paragraph 7(b)(i) above.  In fact, the supposed “disclaimer” may only further deceive visitors who have been led to believe that Respondent or Respondent’s website is Complainant.

 

vii.       Respondent’s incorrect contact information in the WhoIs records associated with the disputed domain names, as described in section 4 above, is additional evidence of bad faith. ^[11]

 

viii.      Respondent’s bad faith is also evidenced by the fact that Respondent owns no trademark or other intellectual property rights in the domain names; the domain names do not consist of the legal name of or a name commonly used to identify Respondent; Respondent has not used the domain names in connection with the bona fide offering of any goods or services; Respondent has made no bona fide noncommercial or fair use of the DELL Marks in a site accessible under the domain names; and Respondent’s domain names incorporate exactly the famous mark DELL, as well as other marks owned by Dell.  See 15 U.S.C. § 1125(d)(1)(B)(i).

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

(1)          the domain names 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 names; and

(3)          the domain names have been registered and are being used in bad faith.

 

DISCUSSION

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 Complainant prove the following three elements to obtain an order cancelling or transferring a domain name:

 

(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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory.  See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).

 

Identical and/or Confusingly Similar

Complainant uses the DELL mark in connection with its computer-related products and services. Complainant registered the DELL mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,616,571, registered Oct. 9, 1990), which demonstrates its rights in the mark. Registration with the USPTO (or any other governmental authority) is sufficient to establish rights in a trademark, even where the respondent operates in a different country. See Advance Auto Parts, Inc. d/b/a Advance Auto Innovations, LLC v. Privacy Ltd. Disclosed Agent for YOLAPT / Domain Admin, FA 1625582 (Forum July 23, 2015) (holding that Complainant’s USPTO registration is sufficient under Policy ¶ 4(a)(i), even though Respondent reportedly resides in the Isle of Man). Complainant is only required to demonstrate Complainant’s rights at this point.  Complainant is not required to prove it has greater rights than Respondent.  Complainant has demonstrated sufficient rights in the DELL mark under Policy ¶ 4(a)(i), even though Respondent reportedly resides in India.

 

Complainant claims the disputed domain names are confusingly similar to the DELL mark because they incorporate the mark entirely and they each only add hyphens, a TLD, and a combination of generic or descriptive terms, such as “system,” “downloads,” and “support.” Generally speaking, such minor alterations to domain names is not sufficient to prevent a finding of confusing similarity under Policy ¶ 4(a)(i). Certainly adding a TLD does not prevent a finding of confusing similarity under Policy ¶ 4(a)(i) because domain name syntax requires a TLD, whether it is a gTLD, sTLD or ccTLD.  See Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶4(a)(i).”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶4(a)(i) analysis); see also Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding that the addition of the generic term “finance,” which described the complainant’s financial services business, as well as a gTLD, did not sufficiently distinguish the respondent’s disputed domain name from the complainant’s mark under Policy ¶ 4(a)(i)); see also Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark).

 

Respondent’s small disclaimer at the bottom of its various web sites which reads:

“Disclaimer: [domain name] is a total independent and completely autonomous technical service provider. We provide technical support for all the major vendors and third party products. The third party trademarks, logos, names of the brands and the products have been given for information purpose only and we in no means are advocating any affiliation or connection to any of the product or brand. Neither do we sponsor any product any brand or any service. Hence [domain name] does not claim any sponsorship by any of the third party. If your product is under warranty, the repair service maybe available free from the brand owner.”

is not adequate to distinguish Respondent’s web site from Complainant.  It is in roughly 6 point type and appears in web sites containing the phrase “For Dell Support” in roughly 48 point type.  It isn’t even in good English.  The disclaimer was clearly written so it wouldn’t be noticed.  The Panel finds the disclaimer is not effective.  The disputed domain names are confusingly similar to the DELL mark under Policy ¶ 4(a)(i).

 

The Panel finds Policy ¶ 4(a)(i) satisfied.

 

Rights or Legitimate Interests

Complainant must first make a prima facie case Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶4(a)(ii).  Then the burden shifts to Respondent to show it has rights or legitimate interests.  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).

 

Complainant claims Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names. The WHOIS information regarding the majority of the domain names list “Bhuwaneshwar KC” as registrant.  This name has no obvious relationship to the disputed domain names.  The WHOIS information regarding the remaining domain names list “A A,” “WW WW,” “MA BN,” “ABC CBA,” “ASD AA,” “SS SS,” “SS S,” “HH HHH,” “AAA CCC,” “AAA SSS,” acb nnn,” “abc abc,” “ABC VVCX,” “ZZZ ZZZ,” and “ABC BBB” as registrants. Clearly, this is gibberish. Complainant has not given Respondent permission to use its DELL mark. The names have no obvious relationship to Complainant’s mark.  Respondent has failed to submit a response in this proceeding, meaning these claims are both uncontroverted and unexplained. Therefore, in light of the available evidence, the Panel must conclude Respondent is not commonly known by the disputed domain names under 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 disputed 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).

 

Complainant claims Respondent is neither making (i) a bona fide offering of goods or services nor (ii) a legitimate noncommercial or fair use through the disputed domain names. The vast majority of the domain names promote Respondent’s computer support services, which directly compete with Complainant (there are a few domains which don’t have the “cookie-cutter” web site installed yet). Respondent tries to pass itself off as Complainant by using similar color schemes, layouts, and language, as well including links to Complainant’s legitimate Facebook and Twitter pages. A respondent’s use of a complainant’s mark to offer competing services or to pass itself off as complainant does not constitute (i) a bona fide offering of goods or services or (ii) a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Dream Horse Classifieds v. Mosley, FA 381256 (Forum Feb. 8, 2005) (finding the respondent’s attempt to pass itself off as the complainant by implementing a color scheme identical to the complainant’s was evidence that respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii)). The disputed domain names constitute neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) and (iii).

 

A very small minority of the domain names resolve to inactively held webpages.  This Panel believes this constitutes a failure to demonstrate rights or legitimate interests.  See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum Apr. 20, 2005) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy  ¶ 4(c)(iii).”).  Respondent’s failure to use the disputed domains does not support a finding of any rights or legitimate interests.  

 

Furthermore, Respondent has not provided accurate contract information in the WHOIS, in contravention of ICANN’s rules.  This means Respondent has concealed its true identity and general contact information from the public.  Respondent has not acquired any rights to the various domain names because of their registration.

 

The Panel finds Policy ¶ 4(a)(ii) satisfied.

 

Registration and Use in Bad Faith

Complainant claims Respondent has a pattern of domain name misuse as evidenced by the registration of ninety-eight domain names containing Complainant’s DELL trademark. True enough.  Respondent registered 98 domain names containing Complainant’s mark.  No one has suggested a reason for Respondent’s actions.  However, Policy ¶ 4(b)(ii) provides, “[Respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [Respondent has] engaged in a pattern of such conduct.” [emphasis added]  Complainant reflects its mark in the Dell.com domain name.  Therefore, this Panel declines to find bad faith under Policy ¶ 4(b)(ii).

 

Complainant claims Respondent’s registration and use of the disputed domain names disrupts Complainant’s legitimate business purposes under Policy ¶ 4(b)(iii) because each website competes with Complainant…and could be reasonably said to impersonate Complainant. Using a disputed domain name to divert Internet users to Respondent’s own competing services constitutes bad faith disruption under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business.  The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”). Therefore, Respondent’s registration and use of the disputed domain names constitutes bad faith under Policy ¶ 4(b)(iii).

 

Complainant claims Respondent has attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the websites. Respondent registered the 98 domain names to create a likelihood of confusion with Complainant and Complainant’s mark to profit from users looking for Complainant’s computer support services. Respondent increases the chance of confusion by using Complainant’s color schemes, layouts, and language in an attempt to pass itself off as Complainant.  It would certainly explain why Respondent did this 98 times…because Respondent thought it could make some money passing itself off as Complainant.  Respondent’s competing websites constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See CAN Financial Corporation v. William Thomson / CAN Insurance, FA1401001541484 (Forum Feb. 28, 2014) (finding that the respondent had engaged in bad faith under Policy ¶ 4(b)(iv), by using a confusingly similar domain name to attract Internet users to its own website where it sold competing insurance services); see also Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed.  Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”).

 

Complainant claims Respondent had actual knowledge of Complainant's rights in the DELL mark. After using Complainant’s mark 98 times in a domain name and a number of web sites, it seems to be a sound conclusion Respondent actually knew about Complainant’s mark, especially since Respondent linked to Complainant’s legitimate Facebook page and Twitter feed.  Therefore, Respondent registered the disputed domain names in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also 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 "actual knowledge of Complainant's mark when registering the disputed domain name").

 

Some of the disputed domain names resolve to an inactive web site (meaning the domain names are inactive), further demonstrating bad faith under Policy ¶ 4(a)(iii). Panels have found inactive holding as evidence of bad faith.  See VideoLink, Inc. v. Xantech Corporation, FA1503001608735 (Forum May 12, 2015) (“Failure to actively use a domain name is evidence of bad faith registration and use pursuant to Policy ¶4(a)(iii).”); see also Express Scripts, Inc. v. Windgather Invs. Ltd., D2007-0267 (WIPO Apr. 26, 2007) (finding that it makes no difference that a respondent contends that the advertisements in this case were “generated by the parking company,” the respondent still registered and used the disputed domain name in bad faith).  Respondent’s inactive holding of some of the disputed domain names constitutes bad faith registration and use.

 

Complainant claims Respondent’s use of incorrect WHOIS information is additional evidence of bad faith. Failing to provide correct WHOIS contact information in a commercial context creates a rebuttable presumption of bad faith registration and use.  Respondent has done nothing to rebut that presumption.  Therefore, this Panel is willing to find bad faith registration and use on this basis alone.

 

The Panel finds Policy ¶ 4(a)(iii) satisfied.

 

DECISION

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

 

Accordingly, it is Ordered the <dell-backup-recovery.org>, <dell-bios-update.org>, <dell-chat-support.com>, <dell-chat-support.org>, <dell-chat.org>, <dell-com-support.com>, <dell-computer-support.com>, <dell-computer-support.org>, <dell-customer-care.tech>, <dell-customer-service-number.org>, <dell-customer-support.com>, <dell-customer-support.org>, <dell-customersupport.org>, <dell-data-protection.org>, <dell-data-recovery.tech>, <dell-datasafe.org>, <dell-downloads.org>, <dell-driver-download.org>, <dell-driver-support.com>, <dell-driver-update.org>, <dell-driver.org>, <dell-driverdownload.org>, <dell-drivers-download.org>, <dell-drivers-downloads.org>, <dell-driversdownload.org>, <dell-driversupport.org>, <dell-error-code.tech>, <dell-inspiron-drivers.tech>, <dell-latitude-drivers.tech>, <dell-live-chat.tech>, <dell-optiplex-drivers.tech>, <dell-phone-number.org>, <dell-printer-support.com>, <dell-printerdrivers.org>, <dell-pro-support.com>, <dell-recovery-disk.org>, <dell-recovery-partition.org>, <dell-recovery.tech>, <dell-serial-number.org>, <dell-service-center.org>, <dell-service-code.org>, <dell-sonicwall-support.tech>, <dell-support-assist.com>, <dell-support-center.org>, <dell-support-chat.com>, <dell-support-drivers.com>, <dell-support-drivers.org>, <dell-support-number.com>, <dell-support-number.org>, <dell-support-phone-number.com>, <dell-support-phone-number.org>, <dell-support-phonenumber.org>, <dell-supportdrivers.org>, <dell-system-restore.tech>, <dell-system-update.org>, <dell-tech-support-chat.com>, <dell-tech-support-number.com>, <dell-tech-support.com>, <dell-technical-support.com>, <dell-technical-support.org>, <dell-technicalsupport.org>, <dell-touchpad-driver.org>, <dell-warranty-lookup.org>, <dell-warranty-status.org>, <dell-warranty-support.tech>, <dell-webcam-software.org>, <dellbackup-recovery.org>, <dellbios-update.org>, <dellchat-support.org>, <dellcustomer-service-number.org>, <dellcustomer-servicenumber.org>, <dellcustomer-support.org>, <delldata-protection.org>, <delldriver-download.org>, <delldriver-support.org>, <delldriver-update.org>, <delldrivers-download.org>, <delldrivers-downloads.org>, <delldriversdownload.org>, <dellprinter-drivers.org>, <dellrecovery-disk.org>, <dellrecovery-partition.org>, <dellserial-number.org>, <dellservice-center.org>, <dellservice-code.org>, <dellsupport-center.org>, <dellsupport-drivers.org>, <dellsupport-number.org>, <dellsupport-phone-number.org>, <dellsupportcenter.org>, <dellsystem-update.org>, <delltouchpad-driver.org>, <dellwarranty-lookup.org>, <dellwebcam-software.org>, <my-dell-downloads.org>, <my-delldownloads.org>, <reset-dell-laptop.tech>, and <support-dell.org> domain names be TRANSFERRED from Respondent to Complainant.

 

 

Houston Putnam Lowry, Chartered Arbitrator, Panelist

Dated: Friday, June 17, 2016