The Complainant is Dell Inc., United States of America, represented by AZB & Partners, India.
The Respondent is Ayush Kumar, India.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 20, 2021. On November 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On November 22, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 23, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on November 26, 2021.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on November 29, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 19, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 20, 2021.
The Center appointed Dawn Osborne as the sole panelist in this matter on December 28, 2021. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual BackgroundThe Complainant is the owner of the mark DELL registered, inter alia, in India under trade mark no. 575115 for computers and related goods and services since 1992. It operates a web site at “www.dell.com”.
The Domain Name registered in 2021 has been used for a website using the Complainant’s logo prominently at the top which states that it is a sales affiliate of the Complainant when it is not.
5. Parties’ Contentions A. ComplainantThe Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the famous mark DELL registered, inter alia, in India for computers and related goods and services since 1992. It operates a web site at “www.dell.com".
The Domain Name registered in 2021 incorporates the Complainant’s DELL mark in its entirety the dictionary words “laptop”, “service”, and “center”, the place name Ahmedabad, and the generic Top-Level Domain (“gTLD”) “.com” none of which diminish the similarity between the Domain Name and the Complainant’s registered trade mark.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name is being used for a website using the Complainant’s DELL mark and official logo prominently at the top and which states that it is a sales affiliate of the Complainant when it is not. This is not a bona fide offering of goods or services and the Respondent is not making a legitimate noncommercial fair use of the Domain Name. The Respondent has registered and is using the Domain Name in bad faith, diverting Internet users for commercial gain and taking advantage of the goodwill of the Complainant.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarThe Domain Name in this Complaint combines the Complainant’s DELL mark with the dictionary words “laptop”, “service” and “center”, the geographical term Ahmedabad, and the gTLD “.com.”
Previous panels have found confusing similarity when a respondent merely adds descriptive or geographical terms to a complainant's mark. The addition of the previously mentioned dictionary words and the geographical term Ahmedabad to the Complainant’s mark does not prevent a finding of confusing similarity between it and the Domain Name.
A gTLD is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. The Panel holds that the gTLD “.com” does not prevent a finding of confusing similarity between the Complainant’s mark and the Domain Name.
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
B. Rights or Legitimate InterestsThe Respondent is not authorized to use the DELL mark. The Respondent has not answered this Complaint and is recorded as “Ayush Kumar” on the WhoIs database and accordingly does not appear to be commonly known by the Domain Name.
The use of the Domain Name is commercial and so cannot be legitimate noncommercial fair use.
It is clear from the evidence that the Respondent has used the website attached to the Domain Name to promote competing computer services which are not connected with the Complainant. The usage of the Complainant’s DELL mark which has a significant reputation in relation to computer support services is not a bona fide offering of services as the website does not make it clear that there is no formal connection with the Complainant and the Respondent states falsely that he is a sales affiliate of the Complainant when he is not. Additionally, the use of the Complainant’s DELL logo at the top of the website attached to the Domain Name in a misleading way also suggests that the Respondent is authorised by the Complainant when he is not. As such, this cannot amount to a bona fide offering of services (or goods).
The Respondent has not answered this Complaint and has not provided any legitimate reason why he should be able to use the Complainant’s trade marks in this way. As such, the Panel finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
C. Registered and Used in Bad FaithAs determined above, the Respondent's use of the Domain Name is commercial and he is using it to make profit from competing services not associated with the Complainant in a confusing and deceptive manner including the false statement that the Respondent is a sales affiliate of the Complainant when he is not. The use of the Complainant’s logo and the false statement that the Respondent is a sales affiliate of the Complainant makes it clear that the Respondent is aware of the significance of the DELL name and the Complainant’s trademark rights, business, and service.
Accordingly, the Panel finds that the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant’s trade mark as to the source, sponsorship or affiliation of the Respondent’s web site or services offered on it in a disruptive and competing manner.
As such, the Panel believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith under paragraphs 4(b)(iii) and (iv) and has satisfied the third limb of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name,
Dawn Osborne
Sole Panelist
Date: January 10, 2022