Dell Inc. v. lenee dahl
Claim Number: FA1203001433746
Complainant is Dell Inc. (“Complainant”), represented by Wendy C. Larson, Texas, USA. Respondent is lenee dahl (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dellcomputersblog.com>, <dellcomputerslaptop.com>, <dellcomputersnow.com>, <dellcomputersrepair.com>, <dellcomputersshop.com>, <dellcomputerssite.com>, <dellcomputersstore.com>, <delltechcomputers.com>, <michaeldellcomputers.com>, and <yourdellcomputers.com>, registered with GoDaddy.com, Inc.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 9, 2012; the National Arbitration Forum received payment on March 9, 2012.
On March 12, 2012, GoDaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <dellcomputersblog.com>, <dellcomputerslaptop.com>, <dellcomputersnow.com>, <dellcomputersrepair.com>, <dellcomputersshop.com>,
<dellcomputerssite.com>, <dellcomputersstore.com>, <delltechcomputers.com>, <michaeldellcomputers.com>, and <yourdellcomputers.com> domain names are registered with GoDaddy.com, Inc. and that Respondent is the current registrant of the names. GoDaddy.com, Inc. has verified that Respondent is bound by the GoDaddy.com, Inc. 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 March 13, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 2, 2012 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@dellcomputersblog.com, postmaster@dellcomputerslaptop.com, postmaster@dellcomputersnow.com, postmaster@dellcomputersrepair.com, postmaster@dellcomputersshop.com, postmaster@dellcomputerssite.com, postmaster@dellcomputersstore.com, postmaster@delltechcomputers.com, postmaster@michaeldellcomputers.com, and postmaster@yourdellcomputers.com. Also on March 13, 2012, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 13, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
Respondent’s <dellcomputersblog.com>, <dellcomputerslaptop.com>, <dellcomputersnow.com>, <dellcomputersrepair.com>, <dellcomputersshop.com>, <dellcomputerssite.com>, <dellcomputersstore.com>, <delltechcomputers.com>, <michaeldellcomputers.com>, and <yourdellcomputers.com> domain names, the domain names at issue, are confusingly similar to Complainant’s DELL mark.
Respondent does not have any rights or legitimate interests in the domain names at issue.
Respondent registered and used the domain names at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has used the famous mark DELL, as well as various other marks that include the word DELL (the “DELL Marks”), for many years for computers, and computer-related products and services, among other things. Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its DELL mark (Reg. No. 1,860,272 registered October 25, 1994).
Complainant has not licensed or otherwise authorized Respondent to use the DELL Marks and Respondent is not commonly known by any of the domain names at issue. Respondent has not used, nor made any demonstrable preparations to use, the domain names or a name corresponding to the domain names in connection with a bona fide offering of goods or services. Rather, the domain names were used in connection with websites that displayed monetized pay-per-click links with titles that appeared to refer to Complainant but in reality diverted consumers to third-party advertisers not affiliated with Complainant. Respondent has listed the domain names for sale with an auction site.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant owns a trademark registration with the USPTO for its DELL mark (e.g., Reg. No. 1,860,272 registered October 25, 1994), (e.g., Reg. No. 2,236,785 registered April 6, 1999). Accordingly, Complainant has established rights in the DELL mark pursuant to Policy ¶4(a)(i) through its trademark registrations with the USPTO. See Microsoft Corp. v. Burkes, FA 652743 (Nat. Arb. Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also AOL LLC v. Interrante, FA 681239 (Nat. Arb. Forum May 23, 2006) (finding that where the complainant had submitted evidence of its registration with the USPTO, “such evidence establishes complainant’s rights in the mark pursuant to Policy ¶ 4(a)(i).”). Respondent’s disputed domain names are confusingly similar to Complainant’s DELL mark. The disputed domain names include Complainant’s DELL mark in its entirety with the additional descriptive term “computers,” along with other generic terms that are likely to be associated with DELL. The disputed domain names contain the generic top-level domain (“gTLD”) “.com.” These alterations are insufficient to differentiate a disputed domain name from a mark, and the Panel holds that Respondent’s disputed domain names are confusingly similar to Complainant’s DELL mark pursuant to Policy ¶4(a)(i). See AOL LLC v. AIM Profiles, FA 964479 (Nat. Arb. Forum May 20, 2007) (finding that the respondent failed to differentiate the <aimprofiles.com> domain name from the complainant’s AIM mark by merely adding the term “profiles”); see also Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which is an obvious allusion to complainant’s business.”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”).
The Panel finds that Policy ¶ 4(a)(i) has been established.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Respondent lacks rights and legitimate interests in the <dellcomputersblog.com>, <dellcomputerslaptop.com>, <dellcomputersnow.com>, <dellcomputersrepair.com>, <dellcomputersshop.com>, <dellcomputerssite.com>, <dellcomputersstore.com>, <delltechcomputers.com>, <michaeldellcomputers.com>, and <yourdellcomputers.com> domain names. Respondent is not authorized or licensed to use its DELL mark.
Respondent does not provide any evidence that it is commonly known by the disputed domain names. Based on the evidence submitted, Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Respondent uses the <dellcomputersblog.com>,
<dellcomputerslaptop.com>, <dellcomputersnow.com>, <dellcomputersrepair.com>, <dellcomputersshop.com>, <dellcomputerssite.com>, <dellcomputersstore.com>, <delltechcomputers.com>, <michaeldellcomputers.com>, and <yourdellcomputers.com> domain names to resolve to websites that display monetized pay-per-click links with titles that appear to refer to Complainant but in reality divert consumers to third-party advertisers not affiliated with DELL.
Respondent’s use of the disputed domain names to feature pay-per-click links for competing products and services of third parties does not constitute a bona fide offering of goods or services under Policy ¶4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii). See ALPITOUR S.p.A. v. balata inc, FA 888649 (Nat. Arb. Forum Feb. 27, 2007) (finding that “using the confusingly similar <viaggidea.com> domain name to operate a website that features links to various commercial websites from which Respondent presumably receives referral fees….is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”).
Further, Respondent lists the domain names for sale with an auction site, thereby showing lack of legitimate interest in the disputed domain name. Respondent has not demonstrated rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii). See also Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (“UDRP precedent is clear that auctioning domains does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of domains.”); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent offered to sell the disputed domain names by listing them for sale with an auction site. Offering to sell a confusingly similar domain name is evidence of bad faith under 4(b)(i). See Wrenchead.com, Inc. v. Hammersla, D2000-1222 (WIPO Dec. 12, 2000) (finding that offering the domain name for sale at an auction site is evidence of bad faith registration and use); see also Am. Anti-Vivisection Soc’y v. “Infa dot Net” Web Serv., FA 95685 (Nat. Arb. Forum Nov. 6, 2000) (finding that “general offers to sell the domain name, even if no certain price is demanded, are evidence of bad faith”).
Respondent’s <dellcomputersblog.com>, <dellcomputerslaptop.com>, <dellcomputersnow.com>, <dellcomputersrepair.com>, <dellcomputersshop.com>, <dellcomputerssite.com>, <dellcomputersstore.com>, <delltechcomputers.com>, <michaeldellcomputers.com>, and <yourdellcomputers.com> domain names resolve to websites containing links to third-party websites directly competing with Complainant. Not only are the domain names themselves highly likely to cause confusion but the titles of the displayed pay-per-click links are also clear references to DELL. Respondent’s use of the disputed domain names to display pay-per-click links seeks to create confusion and attract Internet traffic for Respondent’s own profit, which is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also BPI Comm’cns, Inc. v. Boogie TV LLC, FA 105755 (Nat. Arb. Forum Apr. 30, 2002) (“Complainants are in the music and entertainment business. The links associated with <billboard.tv> and <boogie.tv> appear to be in competition for the same Internet users, which Complainants are trying to attract with the <billboard.com> web site. There is clearly a likelihood of confusion between <billboard.tv> and BILLBOARD as to the source, sponsorship, affiliation, or endorsement of the web site or of a product or service on the web site.”).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellcomputersblog.com>, <dellcomputerslaptop.com>, <dellcomputersnow.com>, <dellcomputersrepair.com>, <dellcomputersshop.com>, <dellcomputerssite.com>, <dellcomputersstore.com>, <delltechcomputers.com>, <michaeldellcomputers.com>, and <yourdellcomputers.com> domain names be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: April 18, 2012
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