Dell Inc. v. mohamed bennani
Claim Number: FA1905001844613
Complainant is Dell Inc. ("Complainant"), represented by Caitlin Costello, Virginia, USA. Respondent is mohamed bennani ("Respondent"), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alienwareguide.biz>, registered with GoDaddy.com, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 23, 2019; the Forum received payment on May 23, 2019.
On May 23, 2019, GoDaddy.com, LLC confirmed by email to the Forum that the <alienwareguide.biz> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 24, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 13, 2019 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@alienwareguide.biz. Also on May 24, 2019, the Written Notice of the Complaint, notifying Respondent of the email 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 18, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant sells computers and related products and services in over 180 countries. Complainant has used the ALIENWARE mark for many years in connection with computers and related products and services, such as warranty, repair, and maintenance services. Complainant owns various U.S. trademark registrations for ALIENWARE and related marks, including a standard character mark registration indicating that the mark was first used in commerce in 1997. Complainant also owns various trademark registrations for DELL and related marks.
The disputed domain name <alienwareguide.biz> was registered in November 2018. The domain name is being used for a website that prominently displays Complainant's ALIENWARE mark at the top of each page, and includes images of Complainant's products, offering them for sale alongside products of Complainant's competitors. The website uses the ALIENWARE mark throughout, including on pages devoted to competing products (e.g., "Acer Alienware"). Complainant alleges that Respondent is using Complainant's marks on the website to deceive consumers into thinking that it is associated with Complainant, and that Respondent is attempting to gather personal information from Internet users as a result of such confusion. The website contains an inconspicuous disclaimer that states: "We are a participant in the Amazon Services LLC Associates Program, an affiliate advertising program designed to provide means for us to earn fees by linking to Amazon.com and affiliates sites." Complainant states that Respondent is not an authorized reseller of Complainant's products; that Complainant has not licensed or otherwise permitted Respondent to use its ALIENWARE or DELL marks; and that Respondent is not commonly known by the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <alienwareguide.biz> is confusingly similar to its ALIENWARE mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <alienwareguide.biz> incorporates Complainant's registered ALIENWARE trademark, adding the generic term "guide" and the ".biz" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Dell Inc. v. Navinder Sharma / Alienwareparts, FA 1812039 (Forum Nov. 21, 2018) (finding <alienwareparts.com> confusingly similar to ALIENWARE); Tractor Supply Co. of Texas LP & Tractor Supply Co. v. Speedeenames.com / Troy Rushton, D2010-0795 (WIPO July 14, 2010) (finding <tractor‑supply‑guide.com> confusingly similar to TRACTOR SUPPLY CO); Amazon Technologies, Inc. v. Deep Aaron / Tech Base Help, FA 1674975 (Forum June 27, 2016) (finding <kindle‑support.biz> confusingly similar to KINDLE). Accordingly, the Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for a misleading website that uses Complainant's marks to promote products that include those of Complainant's competitors, and to collect personal information from users. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Dell Inc. v. Navinder Sharma / Alienwareparts, supra (finding lack of rights or interests under similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered and is using a domain name that incorporates Complainant's trademark for a website designed to create an impression of association with Complainant to promote competing products, collect personal information from users, or both. Such conduct is indicative of bad faith under paragraphs 4(b)(iii) and 4(b)(iv) of the Policy. Dell Inc. v. Navinder Sharma / Alienwareparts, supra (finding bad faith registration and use under similar circumstances). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <alienwareguide.biz> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 24, 2019
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