Dell Inc. v. qiang zhang / chengduqiangchuankejiyouxiangongsi
Claim Number: FA2012001924271
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is qiang zhang / chengduqiangchuankejiyouxiangongsi (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellzdl.com>, registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn).
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 9, 2020; the Forum received payment on December 9, 2020.
On December 10, 2020, Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) confirmed by e-mail to the Forum that the <dellzdl.com> domain name is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) and that Respondent is the current registrant of the name. Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) has verified that Respondent is bound by the Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) 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 15, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 4, 2021 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@dellzdl.com. Also on December 15, 2020, 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 January 6, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant is a world leader in computers, computer accessories, and other computer-related products and services.
Complainant has rights in the DELL mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <dellzdl.com> domain name is confusingly similar to Complainant’s DELL mark. Respondent incorporates the mark in its entirety and adds the letters “zdl” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <dellzdl.com> domain name as Respondent is not commonly known by the at-issue domain name nor has Complainant authorized Respondent to use the DELL mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent offers products and services related to Complainant’s DELL mark. In fact, the operating agreement between Complainant and Respondent explicitly states that partners may not register or use any domain name or business name containing, or confusingly similar to, any of DELL’s trademarks.
Respondent registered and used the <dellzdl.com> domain name in bad faith as Respondent attempts to confuse internet users into thinking that Respondent is acting under the auspices of Complainant when it is not. Respondent also had actual knowledge of Complainant’s rights in the DELL mark due to the fame of the mark and Respondent being part of Complainant’s Partner Program.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in DELL.
Respondent is not affiliated with Complainant and is not authorized to use the DELL mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in DELL.
Respondent uses the at-issue the domain name to address a commercial website which uses Complainant’s trademark and other intellectual property and that appears to be authorized by Complainant, when it is not.
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 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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the DELL mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <dellzdl.com> domain name is composed of Complainant’s entire DELL trademark with the letters “zdl” appended thereto, all followed by a paragraph 4(a)(i) irrelevant generic top-level domain name, “.com.” The differences between Complainant’s trademark and Respondent’s domain name materially do nothing to distinguish the at-issue domain name from Complainant’s trademark. Therefore, the Panel concludes that Respondent’s <dellzdl.com> domain name is confusingly similar to Complainant’s DELL trademark pursuant to Policy ¶ 4(a)(i). See L.F.P., Inc. v. Yarbrough, FA 114420 (Forum July 9, 2002) (finding that <xxxbarelylegal.com> domain name to be confusingly similar to the complainant’s BARELY LEGAL mark because the addition of “xxx” was not a distinguishing addition).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as ““qiang zhang / chengduqiangchuankejiyouxiangongsi” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <dellzdl.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <dellzdl.com> domain name for the purposes of 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).
Additionally, Respondent uses the confusingly similar <dellzdl.com> domain name to address a website that hosts an unauthorized website that makes of Complainant’s trademarks and other intellectual property and appears to be an official Complainant sponsored website. Respondent’s use of the domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (“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, Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in an at-issue domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel concludes that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Respondent uses the confusingly similar <dellzdl.com> domain to attempt to attract users to Respondent’s website for commercial gain by creating confusion with Complainant’s trademark and the source and/or sponsorship of the domain name and its associated website. Respondent’s use of <dellzdl.com> to imply sponsorship by Complainant when Respondent is actually in violation of the operating agreement prohibiting the unauthorized registration and use of a confusingly similar domain name indicates Respondent’s bad faith registration and use of the confusingly similar at-issue domain name under Policy ¶¶ 4(b)(iii) and (iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business).
Moreover, Respondent had actual knowledge of Complainant’s rights in the DELL mark when it registered <dellzdl.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s DELL trademark, its use of DELL intellectual property on the <dellzdl.com> website, and from the fact that Respondent was a participant in Complainant’s Partner Program. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s trademark rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See 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 had actual knowledge of Complainant's mark when registering the disputed domain name); 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellzdl.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: January 7, 2021
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