Dell Inc. v. Hafiz Raheel Ashraf / Gorsi Computer Network
Claim Number: FA1606001677651
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Hafiz Raheel Ashraf / Gorsi Computer Network (“Respondent”), Pakistan.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <delltech.net>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 2, 2016; the Forum received payment on June 2, 2016.
On June 4, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <delltech.net> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 June 7, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 27, 2016 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@delltech.net. Also on June 7, 2016, 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 July 2, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 uses the DELL mark in connection with its business manufacturing and selling computers, computer accessories, and other computer-related products and services. Complainant sells its products and services in over 180 countries. Complainant has registered the DELL mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,860,272, registered Oct. 25, 1994), which demonstrates its rights in its mark. See Attached Exhibit C for copies of Complainant’s USPTO registrations. The disputed domain name is confusingly similar to Complainant’s mark as it incorporates the famous DELL mark in its entirety and merely add the generic term ”tech,” and the generic top-level domain (“gTLD”) “.net.”
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name or any variant of Complainant’s mark. Nor is Respondent licensed or authorized to use Complainant’s mark. 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 uses the disputed domain name to pass itself off as Complainant through the use of Complainant’s logo and similar color scheme. After creating an association with Complainant, Respondent attempts to gather Internet users’ personal information through contact forms asking for visitors’ “Name,” “Email,” and “Phone Number,” presumably to sell this information to third parties.
Respondent has registered and is using the disputed domain name in bad faith. Respondent uses the disputed domain name to disrupt and compete with Complainant’s business while benefiting commercially. Respondent is engaged in a phishing scheme, whereby Respondent attempts to gather Internet users’ personal information after falsely creating an association with Complainant. Respondent registered the disputed domain name with actual knowledge of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The <delltech.net> disputed domain name was registered December 31, 2015.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
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 the disputed domain name, <delltech.net>, is confusingly similar to the Complainant’s famous trademark. The Complainant has adequately plead that it has superior rights in the trademark. The Respondent arrives at the disputed domain name by merely adding the word or letters “tech” and the g TLD “.net” to the Complainant’s precise trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark.
The Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent is apparently not commonly known by the disputed domain name or any variant of Complainant’s mark. Further, Respondent has no apparent license or authorization to use Complainant’s mark. The WHOIS information merely lists “Hafiz Raheel Ashraf / Gorsi Computer Network” as registrant. Respondent has failed to provide 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).
The Panel finds that Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the resolving websites attempt to pass itself off as Complainant in order to engage in phishing. Respondent apparently makes extensive use of the DELL mark and attempts to copy the look and feel of Complainant’s own website, shown in Exhibit A, in order to pass itself off as Complainant to promote its phishing scheme. Complainant claims to offer, in Exhibit E, screen captures of the “Contact Form” from the websites, in which Internet users are invited to provide Respondent with their name, e-mail addresses, and phone numbers. As the Panel finds Complainant’s contention and description compelling, the Panel finds that Respondent engages in phishing, thereby, failing to use the disputed domain names to provide 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).
As such, the Panel finds that the Respondent lacks any rights or legitimate interests in or to the disputed domain name.
Complainant asserts that Respondent uses the confusingly similar domain name to intentionally attract Internet users to its own websites for commercial gain through a phishing scheme, as described below. Respondent’s use of a disputed domain name to host a website that offers similar products and services offered by a complainant constitutes bad faith registration and use under Policy ¶ 4(b)(iv).
As such, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv).
Furthermore, Complainant contends that Respondent is engaged in a phishing scheme, whereby Respondent attempts to gather Internet users’ personal information after falsely creating an association with Complainant. See Compl., at Attached Ex. E. Respondent demonstrated bad faith registration and use per Policy ¶ 4(a)(iii) because it attempted to acquire the personal information of Internet users through a confusingly similar domain name.
Therefore, the Panel finds that Respondent has engaged in bad faith registration and use as proscribed by Policy ¶ 4(a)(iii).
Finally, Complainant argues that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark. In so arguing, Complainant asserts that Respondent’s use of the disputed domain name to offer services that relate to Complainant is evidence of Respondent’s knowledge of Complainant’s rights in the DELL mark. Previous panels have found evidence of bad faith registration pursuant to Policy ¶ 4(a)(iii) where it is clear that the respondent was well-aware of the complainant’s mark at the time the disputed domain name was registered. See Yahoo! Inc. v. Butler, FA 744444 (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, given the totality of the circumstances, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark under Policy ¶ 4(a)(iii) and, therefore, has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <delltech.net> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: July 4, 2016
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