Dell Inc. v. Akash Dabhi / SILVERSPACE TECHNOLOGIES PRIVATE LIMITED
Claim Number: FA2109001964373
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Virginia, USA. Respondent is Akash Dabhi / SILVERSPACE TECHNOLOGIES PRIVATE LIMITED (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell-corp.com>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 20, 2021; the Forum received payment on September 20, 2021.
On September 21, 2021, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dell-corp.com> 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 22, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 12, 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@dell-corp.com. Also on September 22, 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 October 13, 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 <dell-corp.com> domain name is confusingly similar to Complainant’s DELL mark. Respondent incorporates the mark in its entirety and adds the word “corp,” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <dell-corp.com> domain name as Respondent is not commonly known by the at-issue domain name nor did Complainant authorize 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’s domain name addresses a website that prominently features Complainant’s mark and related products while also utilizing a color scheme and layout similar to Complainant’s official website. Respondent’s <dell-corp.com> website prominently displays the heading DELL CORP and offers “PROFESSIONAL TECHNOLOGY ASSISTANCE” a service also offered by Complainant. Respondent’s website also contains a chat function requesting users’ names and email addresses. Respondent may commercially benefit by using that information and/or by selling it.
Respondent registered and used the <dell-corp.com> domain name in bad faith as Respondent attempts to confuse internet users by displaying Complainant’s mark and related products and there offers competing services. Respondent uses the domain name to phish for private information. Respondent had actual knowledge of Complainant’s rights in the DELL mark due to the longstanding use and fame of the mark in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the DELL trademark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the DELL trademark.
Respondent uses the at-issue domain name to pass itself off as Complainant, offer competing services, and collect private data.
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 ownership of a USPTO trademark registrations for the DELL mark demonstrates Complainant’s rights in such mark for the purposes of Policy ¶ 4 (a)(I). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <dell-corp.com> domain name contains Complainant’s entire DELL trademark followed by a hyphen, the suggestive term “corp” and the generic top-level domain name “.com”. The differences between Respondent’s domain name and Complainant’s trademark fail to distinguish the <dell-corp.com> domain name from Complainant’s DELL mark under the Policy. Therefore, the Panel concludes that Respondent’s <dell-corp.com> domain name is confusingly similar to Complainant’s DELL trademark pursuant to Policy ¶ 4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)), see also, Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark).
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. 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 at-issue domain name identifies the domain name’s registrant as “Akash Dabhi” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <dell-corp.com> domain name or by DELL. The Panel therefore concludes that Respondent is not commonly known by the <dell-corp.com> domain name for the purposes of 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).
Respondent uses the at-issue domain name to address a website impersonating Complainant’s genuine website and there offers services competing with services offered by Complainant under its DELL mark. Using the at-issue domain name in this manner does not indicate a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See Ripple Labs Inc. v. NGYEN NGOC PHUONG THAO, FA 1741737 (Forum Aug. 21, 2017) (“Respondent uses the [disputed] domain name to divert Internet users to Respondent’s website… confusing them into believing that some sort of affiliation exists between it and Complainant… [which] is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
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).
As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent uses the at-issue domain name to address a website dressed to look like an official DELL website and offering services that compete with services offered by Complainant. Using the at-issue domain name to pass off as Complainant in this manner demonstrates bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”); see also, Guess? IP Holder L.P. and Guess?, Inc. v. LI FANGLIN, FA 1610067 (Forum Apr. 25, 2015) (finding respondent registered and used the domain name in bad faith per Policy ¶ 4(b)(iii) because the respondent used the resolving website to sell the complainant’s products, using images copied directly from the complainant’s website), see also 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).
Next, Respondent also uses the at-issue domain name to obtain personal information from internet users under false pretenses. Respondent may then use such information or sell it. Respondent’s phishing for personal data further shows its bad faith registration and use of <dell-corp.com> under the Policy. See, Kaiser Foundation Health Plan, Inc. v. Hines, FA1632754 (Forum Sept. 18, 2015) (“Respondent’s use of the … domain name to engage in a phishing scheme is in itself evidence of Respondent’s bad faith”); see also, Morgan Stanley v. Xu, FA1600534 (Forum Feb 16, 2015) (“Respondent’s use of the disputed domain name in furtherance of a phishing scheme constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii)”); see also, Hess Corp. v. GR, FA770909 (Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use where it fraudulently attempted to acquire the personal and financial information of Internet users through the use of a domain name confusingly similar to a another’s mark)
Finally, Respondent had actual knowledge of Complainant’s rights in the DELL mark when it registered <dell-corp.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of the DELL trademark, from Respondent’s incorporation of Complainant’s trademark in the domain name along with the suggestive term “corp” and from Respondent’s use of the domain name to impersonate Complainant and inappropriately capitalize on the DELL trademark as mentioned elsewhere herein. Respondent’s registration and use of the <dell-corp.com> domain name with knowledge of Complainant’s rights in such domain name further 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 <dell-corp.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: October 14, 2021
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