Dell Inc. v. Devesh Tyagi
Claim Number: FA1805001785301
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Devesh Tyagi (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellcustomersupportnumber.com>, registered with NameCheap, Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 7, 2018; the Forum received payment on May 7, 2018.
On May 7, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <dellcustomersupportnumber.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 May 9, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 29, 2018 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@dellcustomersupportnumber.com. Also on May 9, 2018, 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 June 1, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <dellcustomersupportnumber.com> domain name is confusingly similar to Complainant’s DELL mark.
2. Respondent does not have any rights or legitimate interests in the <dellcustomersupportnumber.com> domain name.
3. Respondent registered and uses the <dellcustomersupportnumber.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Dell Inc., is a world leader in computers products and services. Complainant holds a registration for the DELL mark based with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,616,571, registered Oct. 9, 1990).
Respondent uses the <dellcustomersupportnumber.com> domain name to compete with Complainant and to solicit Internet users’ personal information for Respondent’s commercial gain.
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 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 (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.”).
The Panel finds that Complainant has established rights in the DELL mark under Policy ¶ 4(a)(i) based on registration with the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (stating, “Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”).
Respondent’s <dellcustomersupportnumber.com> domain name incorporates the DELL mark and adds the generic phrase “customer support number” as well as the gTLD “.com.” These changes are not sufficient to distinguish a mark under a Policy ¶ 4(a)(i) analysis. 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)). Accordingly, the Panel finds that Respondent’s <dellcustomersupportnumber.com> domain name is confusingly similar to Complainant’s DELL mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant argues that Respondent has no rights or legitimate interests in the <dellcustomersupportnumber.com> domain name and is not commonly known by the disputed domain name. Complainant has not authorized Respondent to use the DELL mark in any way. The Panel notes that a privacy service was used by Respondent, but was lifted as a result of the commencement of this proceeding. The WHOIS information of record currently identifies Respondent as “Devesh Tyagi.” Thus, the Panel finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <dellcustomersupportnumber.com> domain name. See Philip Morris USA Inc. v. Usama Ramzan, FA 1737750 (Forum July 26, 2017) (“We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <marlborocoupon.us> domain name, and that Complainant has not authorized Respondent to use the MARLBORO mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Usama Ramzan,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the challenged domain name so as to have acquired rights to or legitimate interests in it within the purview of Policy ¶ 4(c)(ii).”); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name).
Complainant further argues that Respondent lacks rights or legitimate interests in the <dellcustomersupportnumber.com> domain name because Respondent failed to use the domain name in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Complainant alleges that Respondent uses the domain name to pass itself off as Complainant in order to promote repair and maintenance services that are in direct competition with services offered by the Complainant. Use of a domain name to pass off as a complainant is not a bona fide offering or fair use under Policy ¶¶ 4(c)(i) & (iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum Apr. 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). Here, Respondent replicates Complainant’s website and displays Complainant’s products. The Panel finds that this use is not a bona fide offering of goods or services under Policy ¶¶ 4(c)(i) & (iii).
Complainant further alleges that Respondent uses the domain name to phish for Internet users’ personal information for commercial benefit. Use of a domain name to phish for Internet users’ personal information may not be considered a bona fide offering or fair use under Policy ¶¶ 4(a)(ii). See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). Here, Respondent creates a false association with Complainant and encourages visitors to provide their name, email address, and phone number on a “Contact Us” page. The Panel finds that this use is also not a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(a)(ii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant demonstrates that Respondent uses the disputed domain name to promote services that are in direct competition with those offered by the Complainant. The Panel finds that this is evidence that Respondent registered and uses the <dellcustomersupportnumber.com> domain name in bad faith under Policy ¶ 4(b)(iii). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (finding bad faith where “Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business.”).
Complainant argues that Respondent has attempted to create confusion with the DELL mark in order to attract Internet users for commercial gain. Use of a domain name to create confusion with a complainant’s mark as to the source, sponsorship, affiliation, or endorsement therein for commercial gain is evidence bad faith per Policy ¶ 4(b)(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.”). Complainant shows that the <dellcustomersupportnumber.com> domain name resolves to a website that copies the look and feel of Complainant’s official <dell.com> website and prominently displays Complainant’s DELL mark. Respondent likely profits by misleading users into providing personal information under the false belief that Respondent’s website is associated with Complainant’s business. The Panel finds that Respondent uses the disputed domain name to create confusion with Complainant’s DELL mark for commercial gain in bad faith under Policy ¶ 4(b)(iv).
Respondent use of the <dellcustomersupportnumber.com> domain name to phish for Internet users’ information is additional evidence of bad faith per Policy ¶ 4(a)(iii). See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).
Complainant further argues that Respondent had actual knowledge of Complainant’s rights in the mark due to the fame of Complainant’s DELL mark. Complainant’s DELL mark is used worldwide in over 180 countries in connection with its computer products and services. The Panel also notes that Respondent copied Complainant’s website. Therefore, the Panel finds that Respondent had actual knowledge of Complainant’s rights when it registered the <dellcustomersupportnumber.com> domain name, and finds further bad faith under Policy ¶ 4(a)(iii). See Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum Mar. 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under Policy ¶ 4(a)(iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellcustomersupportnumber.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 2, 2018
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