Dell Inc. v. Simao Fernandes c/o Nada
Claim Number: FA1609001694122
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, United States. Respondent is Simao Fernandes c/o Nada (“Respondent”), Portugal.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <alienwaregiveaway.xyz>, registered with NameCheap, Inc.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 16, 2016; the Forum received payment on September 16, 2016.
On September 16, 2016, NameCheap, Inc. confirmed by e-mail to the Forum that the <alienwaregiveaway.xyz> 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 September 20, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 11, 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@alienwaregiveaway.xyz. Also on September 20, 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 October 18, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has registered the ALIENWARE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,616,204, registered Sept. 10, 2002), which demonstrates Complainant’s rights in the mark. The <alienwaregiveaway.xyz> domain name is confusingly similar to Complainant’s mark as it wholly incorporates the mark and merely adds the generic term “giveaway” and the generic top-level domain (“gTLD”) “.xyz.”
Respondent has no rights or legitimate interests in the <alienwaregiveaway.xyz> domain name. Respondent is not commonly known by the domain name, and Complainant has not licensed or otherwise permitted Respondent to use its ALIENWARE mark. Further, Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name for a website that deceives consumers into thinking that Respondent or Respondent’s business is, or is affiliated with, or authorized by, Complainant. After creating a false association with Complainant, Respondent uses the domain name in an attempt to gather Internet users’ personal information, requesting that consumers enter their “Full Name,” “Email,” “Phone Number,” and “Address to deliver.”
Respondent registered and is using the <alienwaregiveaway.xyz> domain name in bad faith. First, Respondent has engaged in a pattern of bad faith registration and use, which is made evident by the fact that Complainant recently prevailed in a UDRP proceeding against Respondent. See Dell Inc. v. Simao Fernandes / BurnoutParadiseCommunity, FA 1673659 (Forum June 9, 2016). Second, Respondent uses the domain name in an attempt to pass itself off as Complainant. Third, Respondent uses the domain name to phish for Internet users’ personal information. Fourth, because of Respondent’s use of the domain name to host a website which copies Complainant’s logos, features pictures of its products, and purports to offer giveaways of Complainant’s products, it is clear that Respondent registered the domain name with actual knowledge of Complainant’s mark and rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Dell Inc., is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has rights in the ALIENWARE mark through registration with the USPTO (e.g., Reg. No. 2,616,204, registered Sept. 10, 2002). The <alienwaregiveaway.xyz> domain name is confusingly similar to Complainant’s mark.
Respondent, Simao Fernandes c/o Nada, registered the domain name on June 21, 2016.
Respondent has no rights or legitimate interests in the <alienwaregiveaway.xyz> domain name. Respondent is not commonly known by the domain name. Complainant has not authorized Respondent to use its ALIENWARE mark. Further, Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name for a website that deceives consumers into thinking that Respondent is affiliated with, or authorized by, Complainant. Respondent uses the domain name in an attempt to gather Internet users’ personal information, requesting that consumers enter their “Full Name,” “Email,” “Phone Number,” and “Address to deliver.”
Respondent registered and is using the <alienwaregiveaway.xyz> domain name in bad faith. First, Respondent has engaged in a pattern of bad faith registration and use. Second, Respondent uses the domain name in an attempt to pass itself off as Complainant. Third, Respondent uses the domain name to phish for Internet users’ personal information. Fourth, Respondent registered the domain name with actual knowledge of Complainant’s mark and rights.
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.”).
Complainant has rights in the ALIENWARE mark under Policy ¶ 4(a)(i) through registration with the USPTO. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <alienwaregiveaway.xyz> domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i) as it wholly incorporates the mark and merely adds the generic term “giveaway” and the gTLD “.xyz.”
Respondent has no rights or legitimate interests in the domain name. Respondent is not commonly known by the <alienwaregiveaway.xyz> domain name under Policy ¶ 4(c)(ii). Complainant has not authorized Respondent to use its ALIENWARE mark. The WHOIS information lists “Simao Fernandes” as registrant. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (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).
Respondent is not using the <alienwaregiveaway.xyz> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name for a website that deceives consumers into thinking that Respondent is affiliated with, or authorized by, Complainant. Respondent’s website prominently displays the ALIENWARE mark on its webpage, features pictures of Complainant’s ALIENWARE products, and claims that visitors may receive the “latest alienware laptops” if they “complete one of the offers.” A respondent’s use of a domain name to pass itself off as a complainant does not constitute 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). See Dream Horse Classifieds v. Mosley, FA 381256 (Forum Feb. 8, 2005) (finding the respondent’s attempt to pass itself off as the complainant by implementing a color scheme identical to the complainant’s was evidence that respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii)). As such, the Panel may find that Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Respondent uses the <alienwaregiveaway.xyz> domain name in an attempt to gather Internet users’ personal information, requesting that consumers enter their “Full Name,” “Email,” “Phone Number,” and “Address to deliver.” A respondent lacks rights and legitimate interests in a domain name where the respondent uses the domain name to phish for Internet users’ personal and/or financial information. See Allianz of Am. Corp. v. Bond, FA 690796 (Forum June 12, 2006) (holding that the respondent’s use of the <allianzcorp.biz> domain name to fraudulently acquire the personal and financial information of Internet users seeking Complainant’s financial services was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)).
Respondent has engaged in a pattern of bad faith registration and use under Policy ¶ 4(b)(ii). Complainant recently prevailed in a UDRP proceeding against Respondent. See Dell Inc. v. Simao Fernandes / BurnoutParadiseCommunity, FA 1673659 (Forum June 9, 2016). Panels have held that prior adverse UDRP proceedings against a respondent are sufficient evidence to establish a pattern of bad faith under Policy ¶ 4(b)(ii). See TRAVELOCITY.COM LP v. Aziz, FA 1260783 (Forum June 16, 2009) (“These previous [UDRP] decisions demonstrate a pattern of bad faith registration and use of domain names under Policy ¶ 4(b)(ii).”).
Respondent uses the <alienwaregiveaway.xyz> domain name in an attempt to pass itself off as Complainant. A respondent’s attempt, through a domain name, to pass itself off as a complainant is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”).
Respondent uses the domain name to phish for Internet users’ personal information. A respondent’s use of a domain name to phish for Internet users’ personal and/or financial information constitutes bad faith registration and use. See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers).
Finally, Respondent registered the <alienwaregiveaway.xyz> domain name with actual knowledge of Complainant’s mark and rights. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). 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).
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 <alienwaregiveaway.xyz> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 1, 2016
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