Dell Inc. v. Giannis Papakostas
Claim Number: FA2001001880933
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Virginia, USA. Respondent is Giannis Papakostas (“Respondent”), Greece.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dellsonline.co> and <dellsupports.co>, registered with NameCheap, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 28, 2020; the Forum received payment on January 28, 2020.
On Jan 28, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that the <dellsonline.co> and <dellsupports.co> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 January 30, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 19, 2020 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@dellsonline.co, postmaster@dellsupports.co. Also on January 30, 2020, 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 February 24, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is a world leader in computers, computer accessories, and other computer-related products and services. Complainant has also developed a family of businesses, collectively known as Dell Technologies, that offers products and services related to technology, software, security, and more. Dell Technologies provides the essential infrastructure for organizations to build their digital future, transform IT, and protect their most important asset, information. Over the years, Complainant has invested heavily in marketing under its marks, devoting hundreds of millions of dollars to advertising and promoting its products and services through many media in many countries. Complainant has used television, radio, magazines, newspapers, and the Internet as marketing media. Complainant has been, and continues to be, extremely successful. Complainant sells its products and services in over 180 countries. Complainant has generated $91.3 billion in revenue in Fiscal Year 2019 and is #34 on the Fortune 500. As a consequence of Complainant’s marketing and sales success, Complainant and its marks have become famous in the United States and many other countries, including Greece. Complainant has rights in the DELL mark based upon the registration in the United States in 1990.
Complainant alleges that the disputed domain names are confusingly similar to its DELL mark as they incorporate the mark in its entirety and merely add the generic terms “online” or “support” along with the “.co” country-code top-level domain (“ccTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain names. Respondent is not permitted or licensed to use Complainant’s DELL mark and is not commonly known by the disputed domain names. Additionally, Respondent is not using the disputed domain names to make a bona fide offering of goods or services or for a legitimate non-commercial or fair use. Rather, Respondent uses the disputed domain names to divert Internet users to Respondent’s websites where Respondent hosts pay-per-click advertisements. In addition, Respondent uses the disputed domain names to distribute malicious software.
Further, says Complainant, Respondent has registered and uses the disputed domain names in bad faith. Respondent is attempting to attract Internet users to its competing websites for commercial gain. Additionally, Respondent used the disputed domain names to distribute malicious software. Finally, Respondent had actual knowledge or constructive notice of Complainant’s DELL mark prior to registering the disputed domain names.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has registered trademarks for the mark DELL and uses it market computers and related products and services. The mark was registered in 1990 and it is famous.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain names were registered in 2019.
The resolving websites display advertising and links to websites that offer products and services, some of which compete with those of Complainant.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain names incorporate Complainant’s mark it its entirety, merely adding the generic terms “online”, “support”, the letter “s”, and a gTLD. Additions of a generic and/or descriptive terms, letters and a ccTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Dell Inc. v. Crystal International, Case No. FA 1868000 (Forum Nov. 29, 2019) (concluding that the addition of a “.co” ccTLD does not sufficiently distinguish the domain name from a complainant’s mark). Accordingly, the Panel finds that the <dellsonline.co> and <dellsupports.co> domain names are confusingly similar to Complainant’s DELL mark per Policy ¶ 4(a)(i).
Respondent is not licensed or authorized to use the DELL mark and is not commonly known by the disputed domain names: where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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.). Here, the WHOIS information of record identifies Respondent as “Giannis Papakostas.” The Panel therefore finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
The resolving websites display links and advertisements to products and services, some of which compete with those of Complainant. Advertisements that divert traffic to third-party websites do not constitute a bona fide offering of goods or services, or a noncommercial or fair use per Policies ¶¶ 4(c)(i) & (iii). See TGI Friday’s of Minnesota, Inc. v. Tulip Company / Tulip Trading Company, FA 1691369 (Forum Oct. 10, 2016) (”Respondent uses the domain for a parking page displaying various links that consumers are likely to associate with Complainant, but that simply redirect to additional advertisements and links that divert traffic to third-party websites not affiliated with Complainant… The Panel here finds that Respondent is not using the domain name in connection with a bona fide offering of goods or services.”); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (“use of a domain to sell products and/or services that compete directly with a complainant’s business 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).”). The Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services, or a noncommercial or fair use per Policies ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, Respondent attempts to attract, for commercial gain, users to the disputed domain names which features click-through advertisements that redirect users to third-party websites, some of which compete with Complainant. Using a confusingly similar domain name to commercially benefit via, pay-per-click links can evince bad faith registration and use per Policy ¶ 4(b)(iv). Google Inc. v. James Lucas / FireStudio / Jameschee / FIRESTUDIO / SEONG YONG, FA1502001605757 (Forum Apr. 7, 2015) (“This Panel agrees that Respondent’s inclusion of advertisements to likely reap click-through fees is an example of bad faith pursuant Policy ¶ 4(b)(iv).”); see also ZIH Corp. v. ou yang lin q, FA1761403 (Forum December 29, 2017) (Finding bad faith where Respondent used the infringing domain name to disrupt Complainant’s business by diverting Internet users from Complainant’s website to Respondent’s website where it offered competing printer products). Therefore, the Panel finds that Respondent registered and uses the disputed domain names in bad faith pursuant Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellsonline.co> and <dellsupports.co> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 24, 2020
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