Dell Inc. v. KESTONE INTEGRATED MARKETING PVT. LTD. c/o Kestone Integrated Marketing Services Pvt Ltd
Claim Number: FA1609001694694
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is KESTONE INTEGRATED MARKETING PVT. LTD. c/o Kestone Integrated Marketing Services Pvt Ltd (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellsalespromo.com>, registered with GoDaddy.com, LLC.
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 21, 2016; the Forum received payment on September 21, 2016.
On September 22, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <dellsalespromo.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 September 26, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 17, 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@dellsalespromo.com. Also on September 26, 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 24, 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 registered the world-famous DELL mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,616,571, registered Oct. 9, 1990), and has rights in the mark that it uses for marketing computers under Policy ¶ 4(a)(i). Respondent’s domain name, <dellsalespromo.com>, is confusingly similar to Complainant’s mark, because it merely adds the generic terms “sales promo” to the Complainant’s entire DELL mark, plus the “.com” generic top-level domain (“gTLD”) suffix.
Respondent has no rights or legitimate interests in the <dellsalespromo.com> domain name. Complainant has not granted Respondent permission to use its DELL mark, and the Respondent is not commonly known as “Dell Sales Promo.” Respondent is attempting to pass itself off as Complainant and prominently displays several copies of Complainant’s DELL marks on its website. Such use cannot constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii).
Respondent registered and has been using the <dellsalespromo.com> domain name in bad faith. Respondent presumably is commercially gaining from a phishing scheme created by the confusion as to the source, sponsorship, affilliation, or endorsement of the resolving page of the disputed domain name. Further, Respondent had actual notice of the world-famous DELL mark. Therefore, Respondent registered the domain name in violation of Policy ¶ 4(a)(iii).
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 world-famous DELL mark under Policy ¶ 4(a)(i) through registration with the USPTO (e.g., Reg. No. 1,616,571, registered Oct. 9, 1990). Respondent’s domain name, <dellsalespromo.com>, is confusingly similar to Complainant’s mark.
Respondent, KESTONE INTEGRATED MARKETING PVT. LTD. c/o Kestone Integrated, registered the <dellsalespromo.com> domain name on June 27, 2016.
Respondent has no rights or legitimate interests in the <dellsalespromo.com> domain name. Complainant has not authorized Respondent to use its DELL mark. Respondent is not commonly known as “Dell Sales Promo.” Respondent is attempting to pass itself off as Complainant and prominently displays several copies of Complainant’s DELL mark on its website. Such use is not a bona fide offering of goods and services or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) or (iii).
Respondent registered and uses the <dellsalespromo.com> domain name in bad faith under Policy ¶ 4(a)(iii). Respondent presumably is commercially gaining from a phishing scheme created by the confusion as to the source, sponsorship, affilliation, or endorsement of the resolving page of the disputed domain name. Further, Respondent had actual notice of the world-famous DELL mark.
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 its world-famous DELL mark under Policy ¶ 4(a)(i) through registration with the USPTO. Panels have found that USPTO registration confers rights in a mark, even when the registration is not in the country that a respondent is operating in. See Advance Auto Parts, Inc. d/b/a Advance Auto Innovations, LLC v. Privacy Ltd. Disclosed Agent for YOLAPT / Domain Admin, FA 1625582 (Forum July 23, 2015) (holding that Complainant’s USPTO registration is sufficient under Policy ¶ 4(a)(i), even though Respondent reportedly resides in the Isle of Man).
Respondent’s domain name, <dellsalespromo.com>, is confusingly similar to the DELL mark Policy ¶ 4(a)(i). Respondent’s domain name merely adds the generic terms “sales promo” to the fully incorporated DELL mark, plus the “.com” gTLD suffix.
Respondent has no rights or legitimate interests in the <dellsalespromo.com> domain name. Complainant has not authorized Respondent to use its DELL mark. Respondent is not commonly known by the disputed domain name. The WHOIS information for the domain name lists “Kestone Integrated Marketing Services Pvt . Ltd.” as the registrant. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”).
Respondent is not using the <dellsalespromo.com> domain name to make a bona fide offering of goods and services under Policy ¶ 4(c)(i), or using it to make a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Respondent uses Complainant’s marks on the resolving website to pass itself off as Complainant, and to get mistaken Internet users into divulging their personal information. Panels have held that a respondent attempting to pass itself off as a complainant does not satisfy Policy ¶ 4(c)(i) and (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). Panels have also held that a respondent attempting to use another’s mark to illegitimately obtain personal information is not a use within the parameters of Policy ¶ 4(c)(i) or ¶ 4(c)(iii). See Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum March 17, 2016) (agreeing that respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information).
Respondent has registered and is using the <dellsalespromo.com> domain name in bad faith. Respondent is attempting to pass itself off as Complainant to commercially gain in bad faith under Policy ¶ 4(b)(iv). See Hewlett-Packard Co. v. Ali, FA 353151 (Forum Dec. 13, 2004) (“Respondent [used “HP” in its domain name] to benefit from the goodwill associated with Complainant’s HP marks and us[ed] the <hpdubai.com> domain name, in part, to provide products similar to those of Complainant. Respondent’s practice of diversion, motivated by commercial gain, constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv).”); see also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the disputed domain name was registered and used in bad faith where the respondent hosted a website that “duplicated Complainant’s mark and logo, giving every appearance of being associated or affiliated with Complainant’s business . . . to perpetrate a fraud upon individual shareholders who respected the goodwill surrounding the AIG mark”). As such, Respondent is attempting to create confusion as to the source, sponsorship, affiliation, or endorsement of its domain name with Complainant’s DELL mark in bad faith under Policy ¶ 4(b)(iv).
Respondent had actual knowledge of its rights in the DELL mark when it registered the <dellsalespromo.com> domain name. Therefore, Respondent registered and uses the domain name in bad faith. See Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18, 2000) (finding that the respondent had actual and constructive knowledge of the complainant’s EXXON mark given the worldwide prominence of the mark and thus the respondent registered the domain name in bad faith); see also WordPress Foundation v. mich delorme / mich d dots tlds, FA1410001584295 (Forum, Nov. 25, 2014) (“Because Respondent here relies on the WORDPRESS mark in the disputed domain name and also makes use of Complainant’s services at the resolving page, the Panel finds that Respondent had actual knowledge of Complainant’s mark, and that such knowledge evidences Policy ¶ 4(a)(iii) bad faith.”).
Finally, Respondent is using the <dellsalespromo.com> domain name in bad faith under Policy ¶ 4(a)(iii) as part of a phishing scheme. Panels have defined phishing as “a practice that is intended to defraud consumers into revealing personal and proprietary information,” and held that such conduct can evidence bad faith by itself. See Capital One Fin. Corp. v. Howel, FA 289304 (Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients).
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 <dellsalespromo.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: November 9, 2016
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