WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Dell Computer Corporation v. High Traffic Domains inc., and High Traffic Pro-Life Domains Only $999/Pro-Life Domains RockBottom Prices
Case No. D2003-0282
1. The Parties
The Complainant is Dell Computer Corporation, Round Rock, Texas, United States of America, represented by Jones Day of United States of America.
The Respondents are High Traffic Domains inc., and High Traffic Pro-Life Domains Only $999/Pro-Life Domains Only $999/Pro-Life Domains RockBottom Prices, Bronx, New York, United States of America.
2. The Domain Names and Registrar
The disputed domain names <supportatdell.com> and <wwwwdell.com> are registered with eNom.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 10, 2003. On April 11, 2003, the Center transmitted by email to eNom a request for registrar verification in connection with the domain names at issue. On April 17, 2003, eNom transmitted by email to the Center its verification response indicating that High Traffic Pro-Life Domains only $999/Pro-Life Domains RockBottom Prices is the registrant and providing the contact details for the administrative, billing, and technical contact. On May 6, 2003, Complainant submitted an Amendment to Complaint indicating that the registrant name for both domains changed from "High Traffic Domains inc." to "High Traffic Pro-Life Domains only $999/Pro-Life Domains RockBottom Prices" after the Complaint was filed but before the domain names were placed on Registrar lock, although the relevant contact details remained the same, except that there was no email contact given with the registrant change. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 24, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was May 14, 2003. The Respondents did not submit any response. Accordingly, the Center notified the Respondent’s default on May 16, 2003.
The Center appointed Sally Abel as the sole panelist in this matter on May 23, 2003. 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
Complainant, Dell Computer Corporation, the world’s largest direct seller of computers, has used DELL as a name, trademark and service mark since 1987. Since that time, Complainant spends millions of dollars annually in advertising and promotion; in fiscal year 2002 Complainant’s revenues were approximately $31.2 billion. In addition to more traditional channels, Complainant offers goods and services on line using numerous DELL-based domain names, such as <dell.com>, <dellsupport.com>, and <wwwdell.com>. Complainant maintains a website at "www.dellsupport.com" to direct its customers to its technical support site.
Complainant owns numerous trademark registrations for DELL and other DELL-based marks in over 130 countries, including more than 30 such registrations in the United States alone, such as DELL (Registration No. 1,616,571) for computers and related hardware and software, and "www.dell.com" (Registration No. 2,390,851) also for computers, other hardware and software and related electronics.
Respondents use the domain names at issue, <supportatdell.com> and <wwwwdell.com> to direct traffic to "www.abortionismurder.com", an anti-abortion website depicting particularly graphic photographs of aborted fetuses, with linked titles such as "Partial Birth Murders" and "Methods of Slaughter" leading to more anti-abortion materials.
5. Parties’ Contentions
Complainant contends that the individual responsible for registration and use of the domain names at issue is John Barry. On July 19, 2002, Wired News reported that Mr. Barry was engaged in a "cybersquatting campaign using know trademarks and anmes to drive traffic to the gruesome content of "www.abortionismurder.org", adding that Mr. Barry "has made a business out of registering domains using famous names or brands and redirecting them to abortionismurder.org in an apparent attempt to profit from the abortion controversy." See "www.wired.com/news/print/0,1294,53968,00.html". The article further explained:
"In one case, Barry e-mailed the complainant that it would be faster and cheaper to pay him the $1,000 he was demanding than the $1,500 arbitration cost. In another case, Barry sent a threatening e-mail to the complainant saying that if the company refused to fork over $1,000, they’d better ‘watch their ass.’"
The "www.abortionismurder.org" website is not Mr. Barry’s; Complainant contends that Mr. Barry "typically seeks to extort money" from those he targets.
Mr. Barry’s campaign has resulted in numerous UDRP proceedings against him and his various aliases; Mr. Barry and his companies have been ordered to transfer domain names, on facts very similar to those presented in the instant case, in several cases, including:
University of Central Arkansas v. John Simms and John Barry, WIPO Case No. D2002-0316 (<universityofcentralarkansas.com>)
Nielson Media Research Inc. v. Domains for Sale, Inc., WIPO Case No. D2002-0020 (<nielsenmediaresearch.com>)
Peabody Management, Inc. vs. John Barray, d/b/a Domains for Sale, Inc., WIPO Case No. D2002-0552 (<thepeabodyorlando.com>)
Advance Magazine Publishers Inc., v. Buy This Domain, WIPO Case No. D2002-0803 (<voguemag.com>)
Marie Claire Album S.A. v. Buy This Domain, WIPO Case No. D2002-0677 (<marieclairemagazine.com>)
United Artist Theatre Circuit, Inc. v. Domains for Sale, Inc., WIPO Case No. D2002-0005 (<unitedartiststheatres.com>)
The Reed Institute v. Domain For Sale, Inc., NAF Case No. FA02040001090403 (<reedcollege.com>)
The PNC Financial Services Group, Inc. and PNC Bank, N.A. v. Domains for Sale, Inc., NAF Case No. FA0201000104101 (<pncbank.com>)
The City University of New York v. Domains For Sale Inc., NAF Case No. FA0206000114477 (<johnjaycollege.com>)
Kansas City Kansas Community College v. John Barry d/b/a/ Domain For Sale, Inc., NAF Case No. FA0208000117910 (<kansascitykansascommunitycollege.com>)
Southern California Edison Company v. John Simms, WIPO Case No. D2002-0369 (<southerncaliforniaedison.com>)
The Rittenhouse Development Company v. Domains For Sale, Inc., NAF Case No. FA0101000105211 (<therittenhousehotel.com>)
Sears, Roebuck and Co. v. John Barry, NAF Case No. FA02020001052 (<searsrobuck.com>)
Complainant contends that the domains at issue are confusingly similar to Complainant’s marks, that Respondents have no right or legitimate interest in the domain names, and that Respondents registered and are using the domain names in bad faith, with a clear intent to profit.
The Respondents did not reply to the Complainant’s contentions.
6. Discussion and Findings
Respondents have defaulted. Paragraph 14 of the Rules provides that the Panel may draw such inferences from such a default as it considers appropriate. The Respondent’s default does not automatically result in a decision in favor of the Complainant. The Complainant must still prove eache of the three elements required by the Policy paragraph 4(a). However in the light of the Respondents’ silence the Panel has little reason to doubt the Complainant’s allegations.
A. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires the Complainant to prove that the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights. The domain names <supportatdell.com> and <wwwwdell.com> are confusingly similar to Complainant’s DELL trademarks and service marks.
B. Rights or Legitimate Interests
The second element of a claim of abusive domain name registration is that the Respondent has no rights or legitimate interests in respect of the domain name (Policy, para. 4(a)(ii)). The Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests:
"Any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your 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) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you 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." (Policy, para. 4(c)).
Respondents have not replied to the Complaint, and have not presented any claim of rights or legitimate interests in the disputed domain names on their own behalf. Under the circumstances, the Panel finds that the Respondents have no rights or legitimate interests in either of the domain names.
C. Registered and Used in Bad Faith
Policy paragraph 4(b) provides that the following circumstances are deemed to be evidence that a registrant has registered and used a domain name in bad faith:
(i) "circumstances indicating that the registrant has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) the registrant has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the registrant has engaged in a pattern of such conduct; or
(iii) the registrant has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the registrant has intentionally attempted to attract, for commercial gain, Internet users to its Website 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 its Website or location or of a product or service on its Website or location."
Bad faith registration and use is manifest, both in Respondents’ behavior, and in Respondents’ choice of the registrant name "High Traffic Pro-Life Domains only $999".
Under the circumstances of this case, the Panel assumes, as Complainant alleges, that Mr. Barry orchestrated registration and use of the domain names in an attempt to extort money from Complainant in excess of the out of pocket costs incurred in connection with obtaining the domains. However, regardless of whether Mr. Barry was involved in registration and use of these domain names, the Panel finds Respondents’ conduct in registering and using these confusingly similar domain names to direct traffic to an anti-abortion website likely in an attempt to extort money from Complainant to stop the activity, constitute bad faith per se.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain names, <supportatdell.com> and <wwwwdell.com> be transferred to the Complainant.
Sally M. Abel
Dated: June 6, 2003