Dell Inc. v. chiko fernandez / blogger / Andi Black / Surya Chen / Vera Tanasya / Jay Sanghvi / Why Mawang
Claim Number: FA2108001958134
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Texas, USA. Respondent is chiko fernandez / blogger / Andi Black / Surya Chen / Vera Tanasya / Jay Sanghvi / Why Mawang (“Respondent”), Cambodia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dellipdomain.com>, <dellpoker2.com>, <dellpoker3.com>, <dellpoker9.com>, <poker-dell.com>, <dellpoker88.com>, <pokerdell.com>, <dellpoker.com>, <dellpoker.club>, <pokerdell.online>, and <dellpoker.net>, registered with GoDaddy.com, LLC; 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 4, 2021; the Forum received payment on August 4, 2021.
On August 4, 2021; August 5, 2021, GoDaddy.com, LLC; NameCheap, Inc. confirmed by e-mail to the Forum that the <dellipdomain.com>, <dellpoker2.com>, <dellpoker3.com>, <dellpoker9.com>, <poker-dell.com>, <dellpoker88.com>, <pokerdell.com>, <dellpoker.com>, <dellpoker.club>, <pokerdell.online>, and <dellpoker.net> domain names are registered with GoDaddy.com, LLC; NameCheap, Inc. and that Respondent is the current registrant of the names. GoDaddy.com, LLC; NameCheap, Inc. has verified that Respondent is bound by the GoDaddy.com, LLC; 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 August 10, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 30, 2021 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@dellipdomain.com, postmaster@dellpoker2.com, postmaster@dellpoker3.com, postmaster@dellpoker9.com, postmaster@poker-dell.com, postmaster@dellpoker88.com, postmaster@pokerdell.com, postmaster@dellpoker.com, postmaster@dellpoker.club, postmaster@pokerdell.online, postmaster@dellpoker.net. Also on August 10, 2021, 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. Respondent did however send emails to the Forum, see below.
On September 1, 2021, 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.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The Panel finds that the all the domain names are under common control as Respondent sent an email referring to all of them, and all the sites at the disputed domain names feature the same “Dell Poker” name and offer gambling-related services. This is sufficient to find that the domain names were registered by the same domain name holder. See The Valspar Corporation v. Zhou Zhiliang / zhouzhiliang / Zhiliang Zhou / Eric Chow / Visspa Ltd., FA100800133934 (Forum Sept. 28, 2010); see also BBY Solutions, Inc. v. White Apple / Dev Kumar, FA1805001787251 (Forum June 20, 2018).
Consequently, the Panel will rule on all the disputed domain names, and the registrants are collectively referred to as “Respondent”.
A. Complainant
Complainant, states that it is a world leader in computers, computer accessories, and other computer-related products and services. It 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. It sells its products and services in over 180 countries. Complainant has generated $92.2 billion in revenue in Fiscal Year 2020 and is #34 on the Fortune 500. Complainant has rights in the DELL mark based on its registration of the mark in the United States in 1990. The mark is registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain names are confusingly similar to its DELL mark since they incorporate the entire mark, adding only the terms or phrases “poker” and “ip domain”, and/or numbers, and a generic top-level domain (“gTLD”) such as “.com,” “.net,” “.online,” or “.club.” Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain names as it is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent to use the DELL mark. Additionally, Respondent does not use the disputed domain names for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain names to pass off as Complainant or affiliated with Complainant in order to host gambling websites. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered the disputed domain names in bad faith because Respondent engages in a pattern of bad faith registration by registering for several domain names that infringed on complainant’s mark. Additionally, Respondent uses the disputed domain names for websites that feature gambling-oriented content, which are offerings unrelated to Complainant’s business but promoted under Complainant’s famous DELL mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its emails to the Forum, Respondent states, in pertinent part, referring to all of the disputed domain names: “We will close all the domains within 3-4 days.” And: “Ok sir, in 2-3 days we will close all the domains.”
Complainant owns the mark DELL and uses it to market computer products and services. The mark is famous.
Complainant’s rights in its mark date back to 1990.
The disputed domain names were registered between 2017 and 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The resolving websites feature gambling-oriented content not related to Complainant’s business.
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 in its entirety, adding only a hyphen, generic terms or phrases such as “poker” and “ip domain”, and/or numbers, and a gTLD such as “.com,” “.net,” “.online,” or “.club.” Adding a hyphen, descriptive and/or generic terms or phrases, with or without accompanying numbers, and appending a gTLD are not sufficient to differentiate between the disputed domain name and the mark. See Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Bloomberg Finance L.P. v. network admin, FA 1622138 (Forum July 11, 2015) (“The addition, deletion, and switching of . . . numbers in domain names do not remove Respondent’s domain names from the realm of confusing similarity in relation to Complainant’s BLOOMBERG mark pursuant to Policy ¶ 4(a)(i).”); see also Dell Inc. v. Protection of Private Person / Privacy Protection, FA 1681432 (Forum Aug. 1, 2016) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs. Likewise, the absence of spaces must be disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax prohibits them.”). Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain names: under Policy ¶ 4(c)(ii), when no response is submitted, relevant WHOIS information may demonstrate that a respondent is not commonly known by a disputed domain name. See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (concluding that the respondent was not commonly known by the <amazondevice.org>, <amazondevices.org> and <buyamazondevices.com> domain names under Policy ¶ 4(c)(ii), as the pertinent WHOIS information identified “Timothy Mays,” “Linda Haley,” and “Edith Barberdi” as registrants of the disputed domain names). Here, the WHOIS information identifies “Surya Chen,” “Andi Black,” “chiko fernandez,” “Why Mawang,” “Vera Tanasya,” and “Jay Sanghvi” as registrants. Thus, the Panel finds that Respondent is not commonly known by the domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain names to host gambling websites. Attracting Internet users to websites with unrelated content for commercial gain is not a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Spike's Holding, LLC v. Nexperian Holding Limited, FA 1736008 (Forum July 21, 2017) (“Using a confusingly similar domain to display unrelated content can evince a lack of a bona fide offering of goods or services or legitimate noncommercial or fair use… The Panel therefore finds that Respondent’s unrelated use of the <finishnline.com> domain name evinces a lack of rights and legitimate interests under Policy ¶ 4(c)(i) & (iii).”); see also Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”). Thus, the Panel and finds that Respondent is not using the disputed domain names to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent 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 use the disputed domain names for websites that feature gambling-oriented content; these offering are unrelated to Complainant’s business. Under Policy ¶¶ 4(b)(iii) and (iv), promoting commercial content unrelated to complainant’s business and gambling-related content demonstrates bad faith disruption of a complainant’s business and an attempt to attract users for commercial gain. See PopSockets LLC v. san mao, FA 1740903 (Forum Aug. 27, 2017) (finding disruption of a complainant’s business which was not directly commercial competitive behavior was nonetheless sufficient to establish bad faith registration and use per Policy ¶ 4(b)(iii)); see also Mars, Inc. v. Double Down Magazine, D2000-1644 (WIPO Jan. 24, 2001) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent linked the domain name <marssmusic.com>, which is identical to the complainant’s mark, to a gambling website); see additionally Qwest Comm’ns Int’l Inc. v. Ling Shun Shing, FA 187431 (Forum Oct. 6, 2003) (“Respondent has attempted to commercially benefit from the misleading <qwestwirless.com> domain name by linking the domain name to adult oriented websites, gambling websites, and websites in competition with Complainant. Respondent’s attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”). Thus, the Panel finds bad faith registration and use under Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent engages in a pattern of bad faith registration because it registered the eleven domain names which are the subject of these proceedings and which, as noted above, were registered and used in bad faith. Per Policy ¶ 4(b)(ii), bad faith registration and use may be found where respondent registered for several domain names that infringed on complainant’s mark. See United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (“Complainant contends that Respondent is a serial cybersquatter as evidenced by its registering four separate domain names all incorporating Complainant’s USPS mark. Therefore, the Panel finds that the Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(ii).”); see also Ditec International AB / Global Preservation Systems, LLC v. ADAM FARRAR / HOSTGATOR / FRITS VERGOOSSEN / DITEC INTERNATIONAL CORPORATION / Christopher Alison, FA 1763998 (Forum Feb. 1, 2018) (“Here, Respondent registered six domain names that all include Complainant’s DITEC mark. Therefore, the Panel finds that Respondent’s multiple registrations using the DITEC mark indicates bad faith registration and use per Policy ¶ 4(b)(ii).”); see additionally Philip Morris USA Inc. v. RapidClic / VAUCLIN Olivier, FA1309001520008 (Forum Nov. 7, 2013) (finding that the respondent’s registration of multiple infringing domain names indicates a pattern of bad faith registration and use under Policy ¶ 4(b)(ii)). Therefore, the Panel finds bad faith registration and use per Policy ¶ 4(b)(ii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellipdomain.com>, <dellpoker2.com>, <dellpoker3.com>, <dellpoker9.com>, <poker-dell.com>, <dellpoker88.com>, <pokerdell.com>, <dellpoker.com>, <dellpoker.club>, <pokerdell.online>, and <dellpoker.net> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 2, 2021
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