Dell Inc. v. Milen Radumilo
Claim Number: FA2102001932718
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Virginia, USA. Respondent is Milen Radumilo (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delldealerinchennai.com>, registered with Slow Motion Domains 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 19, 2021; the Forum received payment on February 19, 2021.
On February 19, 2021, Slow Motion Domains LLC confirmed by e-mail to the Forum that the <delldealerinchennai.com> domain name is registered with Slow Motion Domains LLC and that Respondent is the current registrant of the name. Slow Motion Domains LLC has verified that Respondent is bound by the Slow Motion Domains 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 February 23, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 15, 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@delldealerinchennai.com. Also on February 23, 2021, 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 March 17, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 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”) (e.g. Reg. No. 1,860,272, registered Oct. 25, 1994). Respondent’s <delldealerinchennai.com> domain name is confusingly similar to Complainant’s DELL mark. Respondent incorporates the mark in its entirety and adds the generic term “dealer” and geographic descriptor “in Chennai” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <delldealerinchennai.com> as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the DELL mark. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent’s domain name redirects to a series of webpages before resolving to a page that is suspected to distribute malware.
Respondent registered and used the <delldealerinchennai.com> domain name in bad faith as Respondent attempts to cause a likelihood of confusion by using a domain name associated with Complainant’s DELL mark. Respondent also redirects to third party websites where it appears to distribute malware.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 USPTO (e.g. Reg. No. 1,860,272, registered Oct. 25, 1994). Respondent’s <delldealerinchennai.com> domain name is confusingly similar to Complainant’s DELL mark.
Respondent registered the <delldealerinchennai.com> domain name on January 11, 2021.
Respondent lacks rights or legitimate interests in the <delldealerinchennai.com> domain name. Respondent’s domain name redirects to a series of webpages before resolving to a page that appears to distribute malware.
Respondent registered and used the <delldealerinchennai.com> domain name 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 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”).
Complainant has rights in the DELL mark through registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <delldealerinchennai.com> domain name is confusingly similar to Complainant’s DELL mark because the domain name contains the Dell mark in its entirety and adds a generic term and geographic descriptor along with a gTLD.
Respondent lacks rights or legitimate interest in the <delldealerinchennai.com> domain name as Respondent is not commonly known by the disputed domain name nor has Complainant authorized Respondent to use the DELL mark. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed 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). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Milen Radumilo” and there is no other evidence to suggest that Respondent was authorized to use the DELL mark or was commonly known by the disputed domain name. Therefore, Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use of the <delldealerinchennai.com> domain name. Instead, Respondent’s domain name redirects to a series of webpages before resolving to a page that appears to distribute malware. Use of a disputed domain name that redirects to multiple webpages before attempting to distribute malware is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Snap Inc. v. Domain Admin / Whois Privacy Corp., FA 1735300 (Forum July 14, 2017). Here, Complainant provides a screenshot of one of the multiple domain names that Respondent’s <delldealerinchennai.com> domain name that asks internet users to install an extension that Complainant suspects to be malware. Therefore, Complainant has failed to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
Respondent registered and used the <delldealerinchennai.com> domain name in bad faith as Respondent attempts to cause a likelihood of confusion by using a domain name associated with Complainant’s DELL mark. Use of a disputed domain name that uses a mark to cause consumer confusion is bad faith per Policy ¶ 4(b)(iv). See BBY Solutions, Inc. v. Grant Ritzwoller, FA 1703389 (Forum Dec. 21, 2016) (finding bad faith because the <bestbuyus.com> domain name was obviously connected with the complainant’s well-known BEST BUY mark, thus creating a likelihood of confusion strictly for commercial gain). Here, Respondent uses the DELL mark in its domain name in an attempt to create a likelihood of confusion with Complainant, presumably for commercial gain. Therefore, Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Respondent also redirects users to third party websites where it appears to distribute malware. Use of a disputed domain name to resolve to a webpage that offers malware to internet users is bad faith per Policy ¶ 4(a)(iii). See eNom, Incorporated v. Muhammad Enoms General delivery / Enoms.com has been registered just few days after Enom.com, therefore could not have been regstere, FA1505001621663 (Forum July 2, 2015) (“In addition, Respondent has used the disputed domain name to install malware on Internet users’ devices. The Panel finds that this is bad faith under Policy ¶ 4(a)(iii).”). Therefore, Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <delldealerinchennai.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: March 31, 2021
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