Dell Inc. v. sulav it solution / Anup Niroula / The Books Library / Pradeep Bista / www.nepguru.com
Claim Number: FA2306002048246
Complainant is Dell Inc. ("Complainant"), represented by Caitlin Costello of Pirkey Barber PLLC, Virginia, USA. Respondents are sulav it solution / Anup Niroula / The Books Library / Pradeep Bista / www.nepguru.com ("Respondents"), Nepal.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <dellnepal.com>, <dellservicenepal.com>, and <dellcarenepal.com>, registered with OwnRegistrar, Inc.; PDR Ltd. d/b/a PublicDomainRegistry.com; and GoDaddy.com, LLC, respectively.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to Forum electronically on June 8, 2023; Forum received payment on June 8, 2023.
On June 9, 2023, OwnRegistrar, Inc. confirmed by email to Forum that the <dellnepal.com> domain name is registered with OwnRegistrar, Inc., and that Respondent sulav it solution is the current registrant of the name, is bound by the OwnRegistrar, 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"). Equivalent confirmations were received from PDR Ltd. d/b/a PublicDomainRegistry.com and GoDaddy.com, LLC on June 12, 2023, and June 9, 2023, with respect to the domain names <dellservicenepal.com> (Respondent Anup Niroula / The Books Library) and <dellcarenepal.com> (Respondent Pradeep Bista / www.nepguru.com).
On June 16, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 2023 by which Respondents could file a Response to the Complaint, via email to all entities and persons listed on Respondents' registrations as technical, administrative, and billing contacts, and to postmaster@dellnepal.com, postmaster@dellservicenepal.com, postmaster@dellcarenepal.com. Also on June 16, 2023, the Written Notice of the Complaint, notifying Respondents of the email addresses served and the deadline for a Response, was transmitted to Respondents via post and fax, to all entities and persons listed on Respondents' registrations as technical, administrative, and billing contacts.
Having received no response from Respondents, Forum transmitted to the parties a Notification of Respondent Default.
On July 12, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed David E. Sorkin 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[s]" 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 Respondents.
Complainant requests that the domain names be transferred from Respondents to Complainant.
In the instant proceedings, Complainant has alleged that the disputed domain names are effectively controlled by the same person or entity 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 WIPO Overview of WIPO Panel Views on Selected UDRP Questions sets forth factors that are normally considered when a complainant is filed against multiple respondents:
[P]anels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario.
Panels have considered a range of factors, typically present in some combination, as useful to determining whether such consolidation is appropriate, such as similarities in or relevant aspects of (i) the registrants' identity(ies) including pseudonyms, (ii) the registrants' contact information including email address(es), postal address(es), or phone number(s), including any pattern of irregularities, (iii) relevant IP addresses, name servers, or webhost(s), (iv) the content or layout of websites corresponding to the disputed domain names, (v) the nature of the marks at issue (e.g., where a registrant targets a specific sector), (vi) any naming patterns in the disputed domain names (e.g., <mark-country> or <mark-goods>), (vii) the relevant language/scripts of the disputed domain names particularly where they are the same as the mark(s) at issue, (viii) any changes by the respondent relating to any of the above items following communications regarding the disputed domain name(s), (ix) any evidence of respondent affiliation with respect to the ability to control the disputed domain name(s), (x) any (prior) pattern of similar respondent behavior, or (xi) other arguments made by the complainant and/or disclosures by the respondent(s).
WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.11 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/.
The domain names are similar, all combining Complainant's DELL trademark with the geographic term "Nepal" and the ".com" top-level domain, and in two instances inserting a broad generic term, "service" or "care." The domain names are being used for very similar websites, all of which claim to have a location in Kathmandu, and two of which (<dellservicenepal.com> and <dellcarenepal.com>) display the same telephone number. The Panel also notes other similarities among the domain names, their registration data, and the websites to which they resolve. In addition, all of the Respondents have been notified of this proceeding, and none have come forward to dispute the allegation that they are one entity acting under multiple aliases, nor to object to the inclusion of all of the domain names in this proceeding.
Under the circumstances, the Panel considers it appropriate to treat the disputed domain names as being under the common control of a single person or entity (hereinafter "Respondent"). See, e.g., Caterpillar Inc. v. Jorge Anderson / Kerstin Hoffmann / Phillipp Kohler / Brandon Nichols / Frank Scherer / Burns Edward / Paul Saenger / Dieter KALB / Johanna KIRSCH / Kevin HARTMANN / Luca FREYTAG / Michael FAUST / Benjamin KASTNER / Laurie EVELYN / Katrin EBERHART / Martina HOCH / Gabriele GOTTLIEB / Leah KUHN / Stefan HERZOG / Florian FURST / Julia DAECHER / Benjamin KAISER / Ralph PROBST / Karolin GLOECKNER / Lucas WEISS, FA 2043565 (Forum June 16, 2023) (treating domain names as being under common control in similar circumstances).
A. Complainant
Complainant is a leading seller of computers, computer accessories, and other computer- and technology-related products and services around the world. Complainant has used DELL and related marks in connection with this business for many years, and claims that the DELL mark has become famous in the United States, Nepal, and many other jurisdictions as a result of Complainant's marketing and sales success. Complainant owns longstanding United States trademark registrations for DELL in standard character form, along with registrations for Complainant's DELL logo in both the United States and Nepal.
The disputed domain names were registered in April 2020 (<dellservicenepal.com>), March 2021 (<dellcarenepal.com>), and March 2023 (<dellnepal.com>). They are being used for websites that display Complainant's mark and logo, along with other references to Complainant; that offer or purport to offer products or services that are similar to and compete directly with those offered by Complainant; and that prompt users for names and email addresses, which Complainant alleges Respondent may be selling to third parties. Complainant states that Respondent is not commonly known by the disputed domain names, is not an authorized provider of Complainant's products or services; and is not licensed or otherwise permitted to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain names <dellnepal.com>, <dellservicenepal.com>, and <dellcarenepal.com> are confusingly similar to its DELL mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <dellnepal.com> combines Complainant's registered DELL trademark with the geographic term "Nepal," appending the ".com" top-level domain. The other two disputed domain names, <dellservicenepal.com> and <dellcarenepal.com>, include those components and insert a related generic term, "service" or "care." These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Dell Inc. v. Wei Xi, FA 1999379 (Forum July 8, 2022) (finding <dellcares.com> confusingly similar to DELL); Expedia, Inc. v. Prakash Kushwaha, FA 1884238 (Forum Mar. 19, 2020) (finding <expedianepal.com> confusingly similar to EXPEDIA); Dell Inc. v. Raj Kumar, Itel Computer Solutions, D2018-2042 (WIPO Nov. 8, 2018) (finding <dellserviceindia.com> confusingly similar to DELL). The Panel considers each of the disputed domain names to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
Each of the disputed domain names incorporates Complainant's registered mark without authorization. The domain names are being used for websites that use Complainant's mark and logo in a manner likely to mislead users into believing that they are affiliated with or endorsed by Complainant, and that offer or purport to offer directly competing products or services. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Dell Inc. v. Samrat Singha, FA 1853309 (Forum Aug. 26, 2019) (finding lack of rights or interests in similar circumstances); Dell Inc. v. Raj Kumar, Itel Computer Solutions, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered three domain names incorporating Complainant's registered mark and is using them for websites that use Complainant's mark and logo in a manner likely to mislead users into believing that they are affiliated with or endorsed by Complainant, and that offer or purport to offer directly competing products or services. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Dell Inc. v. Samrat Singha, supra (finding bad faith registration and use in similar circumstances); Dell Inc. v. Raj Kumar, Itel Computer Solutions, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <dellnepal.com>, <dellservicenepal.com>, and <dellcarenepal.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 16, 2023
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