Dell Inc. v. Faizal Ahmed
Claim Number: FA1610001697595
Complainant is Dell Inc. (“Complainant”), represented by S. Erik Combs, Texas, USA. Respondent is Faizal Ahmed (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dell.store>, registered with 101domain GRS Limited.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 11, 2016; the Forum received payment on October 11, 2016.
On October 11, 2016, 101domain GRS Limited confirmed by e-mail to the Forum that the <dell.store> domain name is registered with 101domain GRS Limited and that Respondent is the current registrant of the name. 101domain GRS Limited has verified that Respondent is bound by the 101domain GRS Limited 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 October 12, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 1, 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@dell.store. Also on October 12, 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 November 7, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Darryl C. Wilson, 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 has registered its famous DELL mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,860,272, registered Oct. 25, 1994), and it has rights in the mark under Policy ¶ 4(a)(i). Respondent’s <dell.store> domain name is identical to Complainant’s mark as it uses the entire DELL mark, to which it affixes the generic top-level domain (“gTLD”) “store.”
Respondent has no rights or legitimate interests in the disputed domain name. Complainant has not granted Respondent any sort of permission to use its DELL mark, and Respondent is not commonly known as <dell.store>. Respondent has not made any demonstrable preparations to use the disputed domain name. Such non-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 is using the disputed domain name in bad faith. First, Respondent has engaged in a pattern of registering domain names that infringe on famous third-party marks. Second, Respondent’s passive holding of the domain name is evidence of bad faith. Finally, Respondent surely had actual notice of Complainant’s DELL mark when it registered the nearly identical <dell.store> domain name.
B. Respondent
Respondent did not submit a formal Response to this Complaint, but did submit two e-mails to Forum indicating a consent to transfer the disputed domain name. In the first, Respondent states, in relevant part, “I'd be happy to transfer the domain over to you for the price I paid for it. I have not used this domain nor do I intend on using it. I can transfer as soon as, I have no issue doing so.” In the second e-mail, Respondent appears to have rescinded the condition of being paid for the disputed domain name and states, in relevant part, “I don't fully understand this, as a student, I registered a domain (dell.store) which I have not used nor do I intend on using, this domain was a mistake when registering which I could not refund, so was waiting for it to expire. I have NO PROBLEM handing/transferring this domain over to Dell inc….I DO NOT want this domain and am willing to transfer it over right away today.”
Complainant is Dell Inc., who list its address as Round Rock, TX, USA. Complainant is known throughout the world for its sale of computer-related products and services. Complainant owns a number of USA trademark registrations for the word DELL and associated marks, as well as trademark registrations in numerous jurisdictions around the world.
Respondent is Faizal Ahmed of London, United Kingdom. Respondent’s registrar’s address is listed as Dublin, Ireland. Respondent registered the <dell.store> domain name on or about June 14, 2016. Emails sent to the FORUM allegedly coming from Respondent, regarding a willingness to transfer the disputed domain name, match Respondent’s contact information.
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.”).
Preliminary Issue: Consent to Transfer
The Forum was copied on documentation submitted from Respondent to Complainant, which is identified in this proceeding as “Correspondence – Respondent.” In these documents, Respondent purports to consent to the transfer of the <dell.store> domain name. The first correspondence, received October 12, 2016, states:
I'd be happy to transfer the domain over to you for the price I paid for it. I have not used this domain nor do I intend on using it.
I can transfer as soon as, I have no issue doing so.
Hope to hear from you soon.
Regards
The Forum was then copied on documentation of further correspondence by Respondent. Correspondence from Respondent dated October 15, 2016, stated:
Hi, I don't fully understand this, as a student, I registered a domain (dell.store) which I have not used nor do I intend on using, this domain was a mistake when registering which I could not refund, so was waiting for it to expire. I have NO PROBLEM handing/transferring this domain over to Dell inc.
This would save a lot of time and confusion, I DO NOT want this domain and am willing to transfer it over right away today, I have no issue doing so.
Just give me information as to where to transfer the domain and I can get it done.
All this seems unnecessary.
hope that helps
Regards
The Panel notes that it is under no obligation to acknowledge such documents, nonetheless, the Panel does recognize the correspondence and finds it helpful in resolving the present dispute. Respondent consents to transfer the <dell.store> domain name to Complainant. However, after the initiation of this proceeding, 101domain GRS Limited placed a hold on Respondent’s account and therefore Respondent cannot transfer the disputed domain name while this proceeding is still pending. Under the present circumstances, where Respondent has not contested the transfer of the disputed domain name, but instead agrees to transfer the domain name in question to Complainant, the Panel finds it unnecessary to apply the traditional UDRP analysis and instead orders an immediate transfer of the <dell.store> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
Respondent consents to transfer. Immediate transfer of the domain name ordered.
Respondent consents to transfer. Immediate transfer of the domain name ordered.
Respondent consents to transfer. Immediate transfer of the domain name ordered.
As the Respondent has consented to transfer the domain name, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <dell.store> domain name be immediately TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: Nov. 21, 2016
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