DECISION

 

Dell Inc. v. senthil kumar

Claim Number: FA1510001640930

 

PARTIES

Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, United States.  Respondent is senthil kumar (“Respondent”), India.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <delllaptopservicecenters.com>, registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on October 5, 2015; the Forum received payment on October 5, 2015.

 

On October 6, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <delllaptopservicecenters.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 October 7, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 27, 2015 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@delllaptopservicecenters.com.  Also on October 7, 2015, 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 30, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant’s Contentions

1.    Complainant is a world leader in computers, computer accessories, and other computer-related products and services. Complainant sells its products and services in over 180 countries. For several years, Complainant has been the world’s largest direct seller of computer systems. Complainant has registered the DELL mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,860,272, registered October 25, 1994), which demonstrates Complainant’s rights in its mark. The <delllaptopservicecenters.com> domain name is confusingly similar to Complainant’s DELL mark as it merely adds the generic terms “laptop” and “service centers” and the generic top-level domain (“gTLD”) “.com.”

2.    Respondent has no rights or legitimate interests in the disputed domain name. First, Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Second, Respondent is not licensed or authorized to use Complainant’s mark. Finally, Respondent is not making a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent’s disputed domain name resolves to a webpage that displays a version of Complainant’s logo, pictures of Complainant’s products, and advertisements for Complainant’s competitors. See Compl., at Attached Ex. F.

3.    Respondent has registered and is using the disputed domain name in bad faith. First, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s websites. Second, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark. Finally, Respondent has engaged in the practice of phishing by attempting to gather Internet users’ personal information after falsely creating an association with Complainant. See Complaint, at Attached Exhibit G for pop-up “Contact Us” form which seeks to obtain Internet users’ personal information.

 

B.   Respondent’s Contentions

1.    Respondent did not submit a response in this proceeding.

 

FINDINGS

1.    Respondent’s <delllaptopservicecenters.com> domain name is confusingly similar to Complainant’s DELL mark.

2.    Respondent does not have any rights or legitimate interests in the  <delllaptopservicecenters.com> domain name.

3.    Respondent registered or used the <delllaptopservicecenters.com> domain name in bad faith.

 

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

Complainant is a world leader in computers, computer accessories, and other computer-related products and services. Complainant sells its products and services in over 180 countries. For several years, Complainant has been the world’s largest direct seller of computer systems. Complainant has registered the DELL mark with the USPTO (e.g., Reg. No. 1,860,272, registered October 25, 1994). Complainant contends that this USPTO registration demonstrates Complainant’s rights in its mark.  The Panel concludes that trademark registrations with the USPTO suffice to demonstrate a complainant’s rights in its mark for the purposes of Policy ¶ 4(a)(i), with respect to the geographic disparity of the parties. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Therefore, the Panel finds that Complainant has demonstrated its rights in its mark pursuant to Policy ¶ 4(a)(i).

 

Complainant argues that the <delllaptopservicecenters.com> domain name is confusingly similar to Complainant’s DELL mark as it merely adds the generic terms “laptop,” “service,” and “centers,” and the gTLD “.com.” Previous panels have found that the addition of generic terms to a complainant’s mark does not serve to adequately distinguish a respondent’s disputed domain name from a complainant’s mark under Policy ¶ 4(a)(i). See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)).  Previous panels have also found that the affixation of the gTLD “.com” is 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.”). For these reasons, the Panel finds that Respondent’s disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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.”).

 

Complainant argues that Respondent has no rights or legitimate interests in the disputed domain name. Complainant contends that Respondent is not commonly known by the disputed domain name or any derivative of Complainant’s mark. Further, Complainant argues that Respondent has no license or authorization to use Complainant’s mark. The Panel notes that the WHOIS information merely lists “senthil kumar” as registrant and that Respondent has failed to submit any evidence for the Panel’s consideration. As such, the Panel finds no basis in the available record to find Respondent commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).

 

Complainant contends that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). Specifically, Complainant argues that Respondent’s disputed domain name resolves to a webpage that displays a version of Complainant’s logo, pictures of Complainant’s products, and advertisements for Complainant’s competitors. Past panels have found that there is not a bona fide offering of goods or services or a legitimate noncommercial or fair use where a respondent’s disputed domain name resolves to a website that is nearly identical to the complainant’s website, and where the respondent’s resolving webpage promotes products and services that compete directly with the complainant’s business. See Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not 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) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website); see also DLJ Long Term Inv. Corp. v. BargainDomainNames.com, FA 104580 (Nat. Arb. Forum Apr. 9, 2002) (“Respondent is not using the disputed domain name in connection with a bona fide offering of goods and services because Respondent is using the domain name to divert Internet users to <visual.com>, where services that compete with Complainant are advertised.”). For these reasons, the Panel finds that Respondent did not use the disputed domain in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) and (iii).

 

Registration and Use in Bad Faith

Complainant argues that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s websites. In so arguing, Complainant asserts that through Respondent’s use of the DELL marks and images of Complainant’s products, Respondent has created confusion with Complainant’s mark through the disputed domain name. Further, Complainant contends that Respondent uses the disputed domain name to host advertisements, for which he likely receives compensation. Complainant’s attachments at Exhibit F and G seem to demonstrate resolving pages to the <delllaptopservicecenters.com> domain name. Past panels have found evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv) where the disputed domain name is so connected to a complainant’s marks, that it creates a likelihood of confusion for commercial gain. See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain). Accordingly, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(iv).

 

Complainant contends that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark. In so arguing, Complainant asserts that it is clear that Respondent knew of Complainant’s famous mark based on Respondent’s use of a logo that copies Complainant’s, the pictures of Complainant’s products displayed on Respondent’s website, and the advertisements that promoted Complainant’s competitors. Past panels have found bad faith registration pursuant to Policy ¶ 4(a)(iii) where it is clear that a respondent was well-aware of a complainant’s mark at the time the disputed domain name was registered. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration). Accordingly, the Panel finds that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark under Policy ¶ 4(a)(iii).

 

 

Finally, Complainant argues that Respondent has engaged in the practice of phishing by attempting to gather Internet users’ personal information after falsely creating an association with Complainant. Specifically, Complainant asserts that Respondent uses a “Quick Contact Form” that is displayed on many of its pages and a “Contact Us” pop-up on its home page to gather personal information from Internet users; Complainant argues that Respondent likely commercially benefits by selling this personal information to third parties.  See Compl., at Attached Ex. G. Past panels have found bad faith registration and use where a respondent used a disputed domain name to acquire the personal information of the complainant’s customers. See Juno Online Servs., Inc. v. Iza, FA 245960 (Nat. Arb. Forum May 3, 2004) (concluding that using a domain name that “is confusingly similar to Complainant’s mark, redirects Internet users to a website that imitates Complainant’s billing website, and is used to fraudulently acquire personal information from Complainant’s clients” is evidence of bad faith registration and use). Therefore, the Panel finds that Respondent demonstrated bad faith registration and use pursuant to Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <delllaptopservicecenters.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

Dated:  11/12/15

 

 

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