WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Dell Inc. v. Ganesh Ganga, Ram Infotech

Case No. D2019-1213

1. The Parties

The Complainant is Dell Inc., United States of America (“United States”), represented by AZB & Partners, India.

The Respondents are Ganesh Ganga, India and Ram Infotech, India.

2. The Domain Name and Registrar

The disputed domain name <delllaptopservicecentersinchennai.com> (the “Domain Name”) is registered with GoDaddy.com, LLC (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 28, 2019. On May 28, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 28, 2019, 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 June 4, 2019, 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 June 6, 2019.

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 Respondents of the Complaint, and the proceedings commenced on June 7, 2019. In accordance with the Rules, paragraph 5, the due date for Response was June 27, 2019. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on June 28, 2019.

The Center appointed W. Scott Blackmer as the sole panelist in this matter on July 11, 2019. 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 Background

The Complainant is a corporation established in 1984 under the laws of the United States state of Delaware and headquartered in Round Rock, Texas, United States. The Complainant claims to be the world’s largest direct seller of computer systems. It manufactures and sells computer hardware, software, peripherals, mobile phones, tablet computers, and related devices, as well as offering computer-related consulting, installation, maintenance, leasing, warranty and technical support services to consumers, enterprises, and public institutions in 180 countries, including India. According to the Complainant, “[t]he Complainant has a team of 100,000 members across the world that caters to more than 5.4 million customers every day”. The Complainant’s products have been widely available in India since 1993, sold both online at “www.dell.com” and in retail stores in some 200 cities in India. (The Complainant also holds the domain name <dell.co.in>, which redirects to the Indian page on the Complainant’s website at “www.dell.com”.) The Complainant provides post-sale maintenance and repair services to customers in India through authorized Dell service centers. According to the Complainant, the Respondents do not operate authorized Dell service centers and may not be selling genuine Dell parts, which may expose consumers to safety hazards.

The Complainant states that it has used DELL as a trademark since 1988. It holds multiple DELL trademark registrations in the United States, India, and other countries, both for DELL as a standard character mark and for figurative marks displaying the DELL logo in blue with a slanted “E”, described as follows in the Complaint:

“One of the most distinctive elements of the Plaintiff’s DELL trade mark is the slanted ‘E’. It was not a mere coincidence that the letter ‘E’ was slanted. The slanted ‘E’ symbolized the founder Michael Dell’s wish to ‘Turn the world on its ear’.”

The Complainant’s registered Indian trademarks include the following:

The Registrar reports that the Domain Name was created on March 28, 2017, and is registered in the name of the Respondent Ganesh Ganga of “Chenna”, Tamil Nadu, India, with no organization listed. Ram Infotech is named in the Complaint as a Respondent along with Mr. Ganga because the Domain Name resolves to a website (the “Respondents’ website”) which includes that name at several points. The website is headed “Dell Laptop Service Center R&I” (wherein “Dell” appears in the form of the Complainant’s trademarked figurative blue, slanted “E” mark). The Respondents’ website offers repair and maintenance services for Dell laptops at several branch locations, but it advertises data recovery services as well, apparently for all computers including “Mac” (Apple) computers and “servers”, using “Samsung Data Recovery”. The website advertises repair services for computers of other brands besides DELL, mentioning Acer and Samsung. Where the website presents a map to show the location of a service branch, in several places it displays the name and contact details for “Ram Infotech”. These locations coincide with those of a laptop service firm in Chennai by that name, which operates a website at “www.raminfotech.net”. According to that website, Ram Infotech has been operating since 2007 and is associated with “more than 1500 laptop showrooms in Tamilnadu”, offering service for “all major brands of laptops”, including “Acer, Dell, HP, Compaq, Toshiba, IBM, etc.”

5. Parties’ Contentions

A. Complainant

The Complainant argues that the Domain Name is confusingly similar to its DELL trademarks and that the Respondents have no rights or legitimate interests in the Domain Name. The Complainant infers that the Respondents registered and used the Domain Name in bad faith, to misdirect Internet users for commercial gain by creating a false impression of association with the Complainant.

B. Respondents

The Respondents did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:

(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) the respondent has no rights or legitimate interests in respect of the domain name; and

(iii) the domain name has been registered and is being used in bad faith.

Under paragraph 15(a) of the Rules, “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.

6.1. Preliminary Matter: Respondent identity

According to the WhoIs records, the registrant of the Domain Name is “Ganesh Ganga”. The Complainant has added Ram Infotech as a Respondent along with Mr. Ganga, and provided evidence that the website at the Domain Name includes that name at several points.

In the absence of any evidence from the Respondents disputing the Complainant’s evidence, the Panel accepts the Complainant’s evidence and treats “Ganesh Ganga” and “Ram Infotech” as the Respondents.

6.2. Substantive Matters

A. Identical or Confusingly Similar

The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7. The Complainant indisputably holds registered DELL standard character and figurative trademarks in India and elsewhere. The Domain Name incorporates the mark in its entirety and adds descriptive and geographical terms that do not prevent a finding of confusing similarity. The Panel notes that the Complainant also provides authorized laptop services in Chennai. As in most cases, the generic Top-Level Domain (“gTLD”) “.com” is disregarded. Id.

The Panel finds that the Domain Name is confusingly similar to the Complainant’s DELL trademark for Policy purposes and concludes that the Complainant has established the first element of the Complaint.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the Respondents may establish rights or legitimate interests in the Domain Name, by demonstrating any of the following:

(i) before any notice to it of the dispute, the Respondents’ use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or

(ii) that the Respondents have been commonly known by the Domain Name, even if it has acquired no trademark or service mark rights; or

(iii) the Respondents are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Since a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. Here, the Complainant has grounded its prima facie case by establishing its trademark rights, confusing similarity, and a lack of permissive use. This shifts the burden to the Respondents, which have not come forward to assert rights or legitimate interests.

The website associated with the Domain Name does not identify a legal entity with a corresponding name. Instead, as noted above, there are several references to the Respondent Ram Infotech in the locations given for “Dell Laptop Service Centers”. Moreover, according to the Complainant the Respondents are not authorized resellers, distributors, or service providers for DELL products, and it is not evident from the website at the disputed domain name that the Respondents would have an argument for making nominative fair use of the Complainant’s mark in the Domain Name as an unauthorized aftermarket service provider. See WIPO Overview 3.0, section 2.8; Oki Data Americas, Inc. v. ASD, Inc., WIPO Case No. D2001-0903 (“Oki Data”). This is because the Respondents’ associated website fails the Oki Data test in several respects: the Respondents do not “accurately and prominently disclose the registrant’s relationship with the trademark holder” and do not “use the site to sell only the trademarked goods or services”; the Respondents offer data recovery services and also services relating to competing products (Apple, Acer, Samsung). It is not even established that the Respondents sell genuine DELL spare parts; the Complainant suggests that they may be counterfeit, and the Respondents offer no reply.

Thus, the Panel finds no evidence on this record to support a finding that the Respondents have rights or legitimate interests in the Domain Name and concludes that the Complainant prevails on the second element of the Complaint.

C. Registered and Used in Bad Faith

The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”, including the following suggested by the Complainant (in which “you” refers to the registrant of the domain name):

“(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”

This example is apt in the present circumstances. The Domain Name carries a risk of implied affiliation by incorporating the trademark and referring to a service that the Complainant offers in the same geography. The Respondents use the Domain Name commercially, ostensibly in connection with servicing the Complainant’s products, but they fail the Oki Data test for legitimate, fair use of the Domain Name, as detailed in the last section. The Respondents reveal their bad faith by using the Domain Name for a website prominently displaying the Complainant’s “Slanted E” figurative logo and copies of images of the Complainant’s products, while nowhere identifying the actual source of the website or disclosing the fact that the Respondents are not authorized distributors or service providers. Further, they use the Domain Name based on the Complainant’s trademark to advertise services unrelated to the trademarked products and services relating to products of the Complainant’s competitors. This conduct must be considered bad faith within the meaning of the Policy.

The Panel concludes that the third element of the Complaint, bad faith, has been established.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <delllaptopservicecentersinchennai.com> be transferred to the Complainant.

W. Scott Blackmer
Sole Panelist
Date: July 26, 2019