Dell Inc. v. Nelson laptopshoppe d/b/a The Laptop shoppe
Claim Number: FA1210001469084
Complainant is Dell Inc. (“Complainant”), represented by Wendy C. Larson, Texas, USA. Respondent is Nelson laptopshoppe d/b/a The Laptop shoppe (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delllaptopstore.com>, registered with NET 4 INDIA LIMITED.
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.
Hon. Karl V. Fink (Ret.), as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 25, 2012; the National Arbitration Forum received payment on October 25, 2012.
On October 29, 2012, NET 4 INDIA LIMITED confirmed by e-mail to the National Arbitration Forum that the <delllaptopstore.com> domain name is registered with NET 4 INDIA LIMITED and that Respondent is the current registrant of the name. NET 4 INDIA LIMITED has verified that Respondent is bound by the NET 4 INDIA LIMITED 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 October 29, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 19, 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@delllaptopstore.com. Also on October 29, 2012, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 30, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Karl V. Fink (Ret.), 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 issues 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 name be transferred from Respondent to Complainant.
i. Respondent is not authorized by Complainant to use the DELL marks.
ii. Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or making a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii) where Respondent’s website displays the DELL marks and claims to be an “Authorised Dell laptop store in Chenai.”
iii. Respondent is attempting to obtain Internet users’ personal information at the “Contact Us” section of Respondent’s website, for which Respondent commercially benefits by selling that information to third parties.
i. Respondent has registered the disputed domain name with the intention to attract Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark, for which Respondent presumably profits. Respondent’s website displays the DELL marks and images of Complainant’s products and claiming to be an authorized store when it is not.
ii. Respondent has registered the disputed domain name in the hopes that consumers will provide Respondent with their personal contact details.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For reasons set forth below, the Panel finds Complainant is entitled to the relief requested.
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, Dell Inc., is a world leader in computers, computer parts, and other computer-related products and services. Complainant contends that it sells its products and services in over 180 countries, including India. Complainant contends that it owns and operates a website at <www.dell.com>. Complainant owns several trademark registrations with the USPTO for the DELL marks (Reg. No. 1,860,272, registered October 25, 1994) and with the CGPDT (Reg. No. 489847, registered January 28, 2005). The Panel finds that Complainant’s registration with the USPTO and with the CGPDT is sufficient to establish rights in the marks under Policy ¶ 4(a)(i). See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world).
Complainant contends that Respondent’s <delllaptopstore.com> domain name is confusingly similar to Complainant’s DELL marks as it incorporates the DELL mark and adds the descriptive terms “laptop” and “store.” The Panel finds that the addition of descriptive terms does not distinguish Respondent’s disputed domain name from Complainant’s DELL marks as both descriptive terms relate directly to Complainant’s business. See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business). The Panel notes that Respondent has added the generic top-level domain (“gTLD”) “.com” to the disputed domain name. The Panel finds that the addition of a gTLD has been found to be irrelevant to a Policy ¶ 4(a)(i) analysis. See Metro-Goldwyn-Mayer Studios Inc. v. Antigua Domains, FA 1073020 (Nat. Arb. Forum Oct. 17, 2007) (“[T]he inclusion of the generic top-level domain ‘.com’ is inconsequential to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.”). Therefore, the Panel determines that Respondent’s disputed domain name is confusingly similar to Complainant’s DELL marks under Policy ¶ 4(a)(i).
Complainant has proven this element.
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. Complainant satisfies its burden, the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
The Panel notes that the WHOIS information identifies “Nelson laptopshoppe d/b/a The Laptop shoppe” as the registrant of the disputed domain name. Complainant further argues that Respondent is not authorized by Complainant to use the DELL marks. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant contends that Respondent’s disputed domain name resolves to a website displaying Complainant’s DELL marks, and claims that Respondent is an “Authorised Dell laptop store in Chennai.” Further, Complainant notes that the resolving website features photographs of Complainant’s products and the Panel notes that the products appear to be marketed for sale. Complainant contends that Respondent is attempting to misleadingly divert Internet users from Complainant’s website to Respondent’s website, for which Respondent presumably profits. The Panel finds that Respondent’s false claim and unauthorized use of the DELL marks to market and presumably sell Complainant’s products without authorization to do so does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Caterpillar Inc. v. Huth, FA 169056 (Nat. Arb. Forum Sept. 2, 2003) (“Respondent lacks rights in the disputed domain names because Respondent competes with Complainant by selling Complainant's used parts without a license from Complainant to do so.”).
Complainant further argues that Respondent is attempting to obtain Internet users’ personal information at the “Contact Us” section of Respondent’s website, for which Respondent commercially benefits by selling that information to third parties. The Panel finds that Respondent’s attempt to gain person information from consumers is defined as “phishing.” See Wells Fargo & Co. v. WhoisGuard, FA 1103650 (Nat. Arb. Forum Dec. 13, 2007) (“There is no dispute that respondent previously used the disputed domain name to obtain personal and financial information from Internet customers of complainant. This fraudulent use [is] known as ‘phishing’”). The Panel finds that Respondent’s attempt to “phish” information from consumers is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Nat. Arb. Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”) Therefore, the Panel concludes that Respondent does not have rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).
Complainant has proven this element.
Complainant argues that Respondent has registered the disputed domain name with the intention to attract Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark, for which Respondent presumably profits. Complainant contends that Respondent’s attempt to confuse users is demonstrated by displaying DELL marks and images of Dell’s products and claiming to be an authorized store when it is not. The Panel finds that Respondent’s attempt to confuse Internet users as to Complainant’s sponsorship or authorization of Respondent’s website selling DELL goods without authorization, and to its own commercial gain, constitutes attraction for commercial gain in bad faith under Policy ¶ 4(b)(iv). See Hunter Fan Co. v. MSS, FA 98067 (Nat. Arb. Forum Aug. 23, 2001) (finding bad faith where the respondent used the disputed domain name to sell the complainant’s products without permission and mislead Internet users by implying that the respondent was affiliated with the complainant).
Complainant argues that Respondent has registered the disputed domain name in the hopes that consumers will provide Respondent with their personal contact details in the “Contact Us” section. Complainant contends that Respondent is using the disputed domain name to establish trust with consumers and then “phishing” personal information from them. The Panel finds that “phishing” constitutes bad faith use and registration. See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (determining that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). The Panel agrees that Respondent is using the disputed domain name for a phishing scam and finds that Respondent has registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Complainant has proven this element.
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 <delllaptopstore.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.), Panelist
Dated: December 5, 2012
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page