Dell Inc. v. Emir Kurtovic / agencija RAPTOR
Claim Number: FA1909001862400
Complainant is Dell Inc. ("Complainant"), represented by Caitlin Costello, Virginia, USA. Respondent is Emir Kurtovic / agencija RAPTOR ("Respondent"), Serbia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delltechnologies.company>, 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 September 16, 2019; the Forum received payment on September 16, 2019.
On September 17, 2019, GoDaddy.com, LLC confirmed by email to the Forum that the <delltechnologies.company> 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 September 19, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 9, 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@delltechnologies.company. Also on September 19, 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 October 11, 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 is a leading seller of computers, computer accessories, and other computer-related products and services around the world, including in the Republic of Serbia. Complainant has used DELL and related marks including DELL TECHNOLOGIES in connection with this business for many years, and claims that the DELL mark has become famous in the United States and many other countries as a result of Complainant's marketing and sales success. Complainant owns multiple trademark registrations for the DELL mark in both the United States and Serbia, as well as a U.S. registration for DELL TECHNOLOGIES.
Respondent registered the disputed domain name <delltechnologies.company> in August 2019. The domain name is being used for a website that appears to consist of news articles copied from other websites. The website includes the title "DELL technologies" at the top of the page. It also includes links to "partner" websites under different names that feature the same or similar content. Complainant states that it has not licensed or otherwise permitted Respondent to use its marks.
Complainant contends on the above grounds that the disputed domain name <delltechnologies.company> is identical or confusingly similar to its DELL and DELL TECHNOLOGIES marks; 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 identical or 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 <delltechnologies.company> incorporates Complainant's registered DELL trademark and corresponds to its registered DELL TECHNOLOGIES mark (omitting the space), adding the generic term "technologies" in the first instance and in both instances appending the ".company" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's marks. See, e.g., Dell Inc. v. Todd Leetham, FA 1862906 (Forum Oct. 14, 2019) (finding <dellltechnologies.com> confusingly similar to DELL and DELL TECHNOLOGIES). The Panel finds that Complainant has rights in both DELL and DELL TECHNOLOGIES, and that the disputed domain name <delltechnologies.company> is confusingly similar to the former and identical to the latter.
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 marks without authorization, and it is being used for a website displaying those marks with news articles copied from other websites and links to similar “partner” websites. The Panel considers it reasonable to infer that Respondent is receiving or seeking to receive some commercial benefit from this use. See, e.g., Wiluna Holdings, LLC v. Sam c/o Dynadot, FA 1804962 (Forum Oct. 4, 2018) (finding lack of rights or interests based upon use of domain name to display links to unrelated websites, presumably for respondent’s commercial benefit); Google LLC v. Super Privacy Service LTD c/o Dynadot, FA 1803232 (Forum Sept. 25, 2018) (finding lack of rights or interests based upon use of domain name to link or redirect traffic to unrelated websites, presumably for respondent's commercial benefit); OpenTable, Inc. v. Lin Yanxiao / Linyanxiao, FA 1639274 (Forum Nov. 5, 2015) (finding lack of rights or interests based upon use of domain name to redirect users to seemingly random third-party websites).
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 a domain name that corresponds to Complainant’s DELL TECHNOLOGIES mark and incorporates Complainant’s famous DELL mark, and is using it to display unrelated third-party content and links to “partner” sites, presumably for commercial gain. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Wiluna Holdings, LLC v. Sam c/o Dynadot, supra (finding bad faith where domain name corresponding to misspelled version of mark was used to attract traffic to page consisting of unrelated pay-per-click links); Google LLC v. Super Privacy Service LTD c/o Dynadot, supra (finding bad faith where domain name incorporating famous mark was used to attract or redirect Internet users to unrelated websites); OpenTable, Inc. v. Lin Yanxiao / Linyanxiao, FA 1639274 (Forum Nov. 5, 2015) (finding bad faith where confusingly similar domain name was used to redirect users to random commercial websites). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <delltechnologies.company> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 16, 2019
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