Dell Inc. v. Khairul Atjeh
Claim Number: FA1807001798781
Complainant is Dell Inc. (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Texas, USA. Respondent is Khairul Atjeh (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delldrivers.co> (the “Domain Name”), 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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 26, 2018; the Forum received payment on July 26, 2018.
On July 27, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <delldrivers.co> 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 July 27, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 16, 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@delldrivers.co. Also on July 27, 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 August 20, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:
Complainant is, inter alia, the owner of the trade mark DELL registered in the USA for computer related goods and services with first use recorded as 1987.
The Domain Name is confusingly similar to Complainant’s DELL mark incorporating it in its entirety adding only the generic word ‘drivers’ and the ccTLD .co.
Respondent is not commonly known by the Domain Name and has no permission from Complainant to use Complainant’s mark. The Domain Name has been used for a competing site which mimics Complainant’s web site in colour scheme and uses Complainant’s logo. This is not a bona fide offering of goods and services or a non commercial legitimate fair use. Respondent has no rights or legitimate interests in the Domain Name. This use is registration and use in bad faith as it confuses Internet users into thinking the web site attached to the Domain Name is associated with Complainant.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is, inter alia, the owner of the trade mark DELL registered in the USA for computer related goods and services with first use recorded as 1987.
The Domain Name registered in 2017 has been used for a site competing with Complainant that mimics the official site of Complainant and uses Complainant’s logo.
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.”).
Identical or Confusingly Similar
The Domain Name consists of Complainant's DELL mark (which is registered in USA for computer related goods and services with first use recorded as 1987), the generic word ‘drivers’ and the ccTLD .co.
Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the complainant). The Panel agrees that the addition of the generic term ‘drivers’ to Complainant's DELL mark does not distinguish the Domain Name from Complainant's registered trade mark pursuant to the Policy especially as Complainant sells computer drivers.
The ccTLD .co does not serve to distinguish a Domain Name from a Complainant’s mark. See ER Marks, Inc. and QVC, Inc. v Stefan Hansmann, FA 1381755 (Forum May 6, 2011).
Accordingly, the Panel holds that the Domain Name is confusingly similar to Complainant’s DELL registered mark.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its marks. There is no evidence or reason to suggest Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The web site attached to the Domain Name uses Complainant's DELL mark, mimics the colour scheme from Complainant’s web site and uses multiple copies of Complainant’s logo so that Respondent’s site could be taken to be an official site of Complainant. It does not make it clear that there is no commercial connection with Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) (finding that the respondent's use of a confusingly similar domain name to advertise services which competed with the complainant's business did not constitute a bona fide use of goods and services).
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration/Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by Complainant as it uses a similar colour scheme to Complainant’s web site without permission and multiple copies of Complainant’s logo. This shows that Respondent is aware of Complainant and its business. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of Complainant.
As such, the Panelist believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paras. 4(b)(iv) and 4 (b)(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 <delldrivers.co> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
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