Dell Inc. v. berat tamer
Claim Number: FA2012001923644
Complainant is Dell Inc. ("Complainant"), represented by Caitlin Costello, Virginia, USA. Respondent is berat tamer ("Respondent"), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellemcobjectscale.com>, registered with Dynadot, 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 December 3, 2020; the Forum received payment on December 3, 2020.
On December 4, 2020, Dynadot, LLC confirmed by email to the Forum that the <dellemcobjectscale.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 December 10, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 30, 2020 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@dellemcobjectscale.com. Also on December 10, 2020, 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 January 5, 2021, 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 Turkey. Complainant has used DELL and related marks 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 U.S. trademark registrations for DELL and DELL EMC in standard character form in the United States and for DELL in Turkey.
On September 10, 2020, Complainant filed an application with the U.S. Patent and Trademark Office to register DELL EMC OBJECTSCALE, based upon an intent to use the mark in connection with a cloud-native object storage platform. The application was made public on September 14, 2020.
Respondent registered the disputed domain name <dellemcobjectscale.com> through a privacy registration service on September 14, 2020. The domain name does not resolve to a website. Complainant states that Respondent is not an authorized provider of Complainant's products or services, has not been licensed or otherwise permitted to use Complainant's marks, and is not commonly known by the disputed domain name.
Complainant contends on the above grounds that the disputed domain name <dellemcobjectscale.com> is confusingly similar to its DELL and DELL EMC 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 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 <dellemcobjectscale.com> incorporates Complainant's registered DELL and DELL EMC trademarks, adding the term "objectscale" (a reference to a product or service of Complainant) and appending the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Dell Inc. v. dell Ada / rick xie, FA 1870925 (Forum Dec. 17, 2019) (finding <dellemc‑solution.com> confusingly similar to DELL); DELL INC. v. Zhang Guoxiang, HK-1600924 (ADNDRC Dec. 29, 2016) (finding <dellemcservices.com> confusingly similar to DELL and EMC). 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 Respondent does not appear to be making any active use of the domain name.
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)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." 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."
The instances of bad faith set forth in paragraph 4(b) are merely illustrative, and bad faith may be found based upon other circumstances in appropriate cases. The timing of a domain name registration in particular may support an inference of opportunistic bad faith. See, e.g., NETSCOUT SYSTEMS INC. v. Super Privacy Service LTD c/o Dynadot, FA 1849802 (Forum July 29, 2019) (finding bad faith where domain name was registered four days after filing of complainant's trademark application).
The disputed domain name incorporates Complainant's famous mark, and it was registered on the same day that Complainant's application to register DELL EMC OBJECTSCALE was made public. Respondent does not appear to have made any active use of the domain name. Under the circumstances, the Panel considers it reasonable to infer that Respondent registered the domain name intending to use it in a manner calculated to create and exploit confusion with Complainant's mark, most likely either by selling the domain name or by using it to attract Internet users seeking Complainant, and that Respondent is maintaining the domain name for that purpose. See, e.g., Morgan Stanley v. shitou, FA 1907912 (Forum Sept. 7, 2020) (making a similar inference where respondent failed to make any active use of domain name incorporating famous mark). Accordingly, 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 <dellemcobjectscale.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: January 7, 2021
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