WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dell Computer Corporation v. RaveClub Berlin
Case No. D2002-0601
1. The Parties
The Complainant Dell Computer Corporation, a Delaware corporation having a principal place of business at One Dell Way, Round Rock, Texas 78682, United States of America.
The Respondent is RaveClub Berlin, 600 Haddonfield Road, Cherry Hill, New Jersey 08034, United States of America.
2. The Domain Name and Registrar
The disputed domain name is <dellsuport.com>, registered with Computer Services Langenbach GMBH dba Joker.com, Rathausufer 16, Dusseldorf, 40213, Germany.
3. Procedural History
The Complaint was filed on June 27, 2002.
The WIPO Arbitration and Mediation Center (the "Center") acknowledged receipt on June 28, 2002, and sent a request for verification to the Registrar on the same date.
The Registrar provided the requested verification on July 4, 2002.
The Center verified formal compliance of the Complaint on July 4, 2002.
The Center notified the Respondent of the Complaint on July 5, 2002.
No Response having been received, the Center notified the parties of Response Default on July 26, 2002.
A sole panelist, Richard Hill, was appointed by the Center on August 8, 2002. The panelist submitted a Statement of Acceptance and Declaration of Impartiality and Independence.
4. Factual Background
Complainant Dell Computer Corporation is a well-known direct seller of computer systems. Founded in 1984, Complainant began using the name and mark DELL as a trade name, trademark and service mark in 1987. Since that time, Complainant has made extensive and prominent use of its DELL mark in connection with a wide range of computer related goods and services, including offering its goods and services online through such web sites as <dell.com> and <dellsupport.com>.
Complainant owns numerous trademarks containing the term DELL.
Complainant conducts business on the Internet through numerous domain names containing the term DELL, including <dell.com> and <dellsupport.com>, which was registered on March 3, 1999.
The disputed domain name was registered on September 8, 2001.
The domain name <dellsupport.com> is used by Dell to direct its customers to its technical support site. Dell customers experiencing technical difficulties with their computer systems, or who simply have technical questions, know that they can type in "www.dellsupport.com" to obtain assistance. Dell's technical support site is very popular and receives an average of 500,000 to 600,000 hits per week.
The Respondent's postal address is fictitious and non-existent.
The disputed domain name is re-directed to an adult-content web site which "mouse-traps" users, that is, which prevents users from leaving the site.
5. Parties’ Contentions
Complainant contends that the disputed domain name is confusingly similar to its mark DELL, that the Respondent has no rights or legitimate interests in the disputed domain name, and that the Respondent registered and is using the disputed domain name in bad faith.
As evidence of bad faith, it draws the Panel's attention to the fictitious address of the Respondent and the fact that the disputed domain name is re-directed to a pornographic site that "mouse-traps" users.
The Respondent has defaulted and makes no contentions.
6. Discussion and Findings
The Panel will first address the procedural issues related to the fact that the Respondent has defaulted and then analyze the evidence to determine whether the Complainant has proven, in accordance with article 4.a of the Uniform Domain Name Dispute Resolution Policy (the ICANN Policy) that:
- The contested domain name is identical or confusingly similar to a trademark in which the complainant has rights, and
- The respondent has no rights or legitimate interests in the contested domain name, and
- The respondent registered and used the contested domain name in bad faith.
I. The procedural issue related to the default of the respondent
Since the Respondent has defaulted, this Panel must first determine what the procedural implications are of a default. Should the Complainant automatically prevail, or should the Panel anyway examine the evidence and base its decision on its determination of the relevant facts and laws?
While the ICANN Policy, the Rules for Uniform Domain Name Dispute Policy (the Rules) and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the Supplemental Rules) that govern these proceedings do not explicitly address this question, they do give some guidance. Notably, article 4(a) of the ICANN Policy states:
"In the administrative proceeding, the complainant must prove that each of these three elements are present." [emphasis added]
This Panel therefore holds that it cannot grant the claimant’s request automatically, but that it must instead examine the evidence presented to determine whether or not the Complainant has proven its case as required by the ICANN Policy.
II. Analysis of the evidence in this case
Similarity between the trademark and the domain name
The Complainant has presented evidence that it owns the rights to the registered trademark DELL and the common law trademark DELLSUPPORT and it is obvious that the contested domain name <dellsuport.com> is confusingly similar to those trademarks.
Lack of rights or legitimate interests in the contested domain name
The Complainant has presented evidence and argued convincingly that, given the international reputation of the DELL mark, it is hard to understand how the Respondent could have any rights or legitimate interests in the contested domain name.
This Panel holds that the Complainant has presented sufficient evidence to satisfy its burden of proof with respect to the issue of whether the Respondent has rights or legitimate interests in the contested domain name.
Bad faith registration and use of the contested domain name
The Complainant has presented convincing evidence showing that the Respondent's address is fictitious. This is an element of bad faith, but would perhaps not be sufficient, absent other circumstances.
However, there are other circumstances in this case, namely the fact that the disputed domain name is re-directed to a pornographic web site. As the Panel stated in WIPO Case No. D2000-0079 <talkabout.com>:
While many adult sex sites are perfectly legal and constitute bona fide offerings of goods or services, the use of somebody else’s trademark as a domain name (or even as a meta-tag) clearly does not constitute a "bona fide" offering of goods or services when the web site owner has no registered or common law rights to the mark, since the only reason to use the trademark as a domain name or meta-tag is to attract customers who were not looking for an adult sex site, but were instead looking for the products or services associated with the trademark. Such use of a trademark can create customer confusion or dilution of the mark, which is precisely what trademark laws are meant to prevent. And actions that create, or tend to create, violations of the law can hardly be considered to be "bona fide".
The fact that the pornographic web site uses "mouse-trapping" techniques to prevent visitors from leaving it clearly reinforces the bad faith use of the disputed domain name.
The Panel orders the disputed domain name <dellsuport.com> to be transferred to the Complainant.
Dated: August 12, 2002