Dell Inc. v. George
Claim Number: FA2303002035668
Complainant is Dell Inc. (“Complainant”), represented by Caitlin Costello, Virginia, USA. Respondent is George (“Respondent”), Greece.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dellupport.com>, registered with Dynadot, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on March 13, 2023; Forum received payment on March 13, 2023.
On March 15, 2023, Dynadot, LLC confirmed by e-mail to Forum that the <dellupport.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 March 21, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 10, 2023 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@dellupport.com. Also on March 21, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On April 17, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 states that 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, including Greece. Complainant has generated $101.2 billion in revenue in Fiscal Year 2022 and is #31 on the Fortune 500. Complainant has rights in the DELL mark through its registration of the mark in the United States in 1994. The mark is registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain name is identical or confusingly similar to its DELL mark as it incorporates the mark in its entirety and merely adds the generic word “upport” (a misspelling of the word “support”) together with the “.com” generic top-level-domain name ("gTLD"). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Respondent been authorized by Complainant to use the DELL mark. Respondent has not used the disputed domain name in connection with a bona fide offering of goods or services or a legitimate non commercial or fair use. Instead, the disputed domain name resolves to various commercial websites unrelated to Complainant; and on occasion to multiple pop-ups, one of which froze Complainant’s computer, stating “Threat Detected: Trojan Spyware”, “Access to this PC has been blocked for security reasons”, and “Contact Windows Support: +1-888-855-1894”,which number does not appear to have any affiliation with Microsoft; below this text there were two buttons on which the user may click, one reading “Deny” and one reading “Allow”; Complainant suspects that this is a fraudulent scheme to trick unsuspecting users into calling a fraudulent support number or clicking on one of these buttons, which will presumably download malware onto the user’s computer. The disputed domain name is an instance of typosquatting. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent’s website disrupts Complainant’s business as Respondent registered the disputed domain name to attract users for commercial gain. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in its mark. Respondent’ uses the disputed domain name to resolve to websites that attempt to distribute scareware and malware. Respondent is engaging in typosquatting. Respondent used a privacy service to hide its identity. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark DELL, with rights dating back to at 1999 and uses it to market computer products and services.
The disputed domain name was registered in 2023.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to various websites unrelated to Complainant, or to popups in furtherance of a scheme to infect users’ computers with malware.
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 name incorporates Complainant’s DELL mark it its entirety and merely adds the letters “upport” (a misspelling of the word “support”) and the “.com” gTLD. Such changes fail sufficiently to distinguish a disputed domain name from a mark per Policy ¶ 4(a)(i). See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable 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 Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise Respondent to use its DELL mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”). Here, the WHOIS information for the disputed domain name lists the registrant as “George”. Therefore the Panel finda that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complaint alleges that Respondent engages in typosquatting. As Complainant correctly notes, typosquatting involves misspelling a mark. See Omaha Steaks International, Inc. v. Domain Manager / Future Movie Names, Case No. FA1503001610127 (Forum April 22, 2015) (“Typosquatting is a practice whereby a domain name registrant, such as Respondent, deliberately introduces typographical errors or misspellings into a trademark and then uses the corrupted string in a domain name”). But Complainant’s mark is not misspelled. Thus the Panel dismisses this allegation and will not further discuss it.
The disputed domain name resolves to popups in furtherance of a scheme to infect users’ computers with malware. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) Zynga Inc. v. Ryan G Foo / PPA Media Services, FA 1650448 (Forum Jan. 14, 2016). (“The resolving website for the <wwwzynga.com> domain name redirects Internet users to websites associated with malware and scareware. Therefore, Respondent does not have rights or legitimate interests in the disputed domain name.”). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Respondent also uses the disputed domain name to direct users to various websites not related to Complainant. Using a disputed domain name to redirect users to different websites may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See AutoZone Parts, Inc. v. Above.com Legal, FA 1497171 (Forum May 29, 2013) (“Respondent’s current use of the domain name to redirect traffic to third-party websites is a blatant attempt to profit from consumer confusion and trade on the fame and goodwill of the AUTOZONE mark for Respondent’s own commercial benefit.”). The Panel therefore finds, on this ground also, that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
For all the above reasons the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
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 name.
Indeed, as already noted, Respondent is using the disputed domain name to distribute malware. Registration of a confusingly similar mark in order to distribute malicious software may evince bad faith registration and use per Policy ¶ 4(a)(iii). See Asbury Communities, Inc. v. Tiffany Hedges, FA 1785054 (Forum June 18, 2018) (“The Panel here finds that Respondent [installation of malware] further support the conclusion that Respondent registered and used the <asburymethodistvillage.com> domain name in bad faith under Policy ¶ 4(a)(iii)”); see also Cruise America, Inc. v. Domain Manager, Domain Brokers, WIPO Case No. D2016-0717 (“the use of a disputed domain name in a website which directs users who have been confused into believing that they are communicating with Complainant to websites containing scareware and malware is clearly potentially damaging to Complainant, and constitutes use in bad faith.”); see also John Stamos v. Ryan G Foo / PPA Media Services / Domain Admin /Whois Privacy Corp, FA 1618847 (Forum June 16, 2015) (Finding Respondent’s use of the disputed domain name “to redirect Internet users to a web page that features a fake ‘virus warning’ and a series of pop-up windows that promote an illegal phishing scheme” evidenced bad faith). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Further, also as already noted, Respondent diverts users to third parties. Registration of a confusingly similar domain name with the intent to disrupt business by resolving to third party websites can evince bad faith registration and use per Policy ¶ 4(b)(iv). See Tumblr, Inc. v. Ailing Liu, FA1402001543807 (Forum Mar. 24, 2014) (“Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant’s business and respondent is likely collecting fees.”). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith per 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 <dellupport.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 17, 2023
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