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ADMINISTRATIVE PANEL DECISION
Dell Inc. v. Mojtaba Behnoudi
Case No. DIR2006-0006
1. The Parties
The Complainant is Dell Inc, Round Rock, Texas, United States of America, represented by Loeb & Loeb, LLP, United States of America.
The Respondent is Mojtaba Behnoudi, Tehran, Islamic Republic of Iran.
2. The Domain Name and Registrar
The disputed domain name <dell-iran.ir> (the “Domain Name”)
is registered with IRNIC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 18, 2006. On December 20, 2006, the Center transmitted by email to IRNIC a request for registrar verification in connection with the Domain Name. On December 20, 2006, IRNIC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of .IR Domain Name Dispute Resolution Policy (the “Policy”), the Rules for .IR Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .IR 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 January 3, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was January 23, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on January 24, 2007.
The Center appointed Tobias Zuberbьhler as the sole
panelist in this matter on February 8, 2007. 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 the world’s largest direct seller of computers. The Complainant proved ownership over the trademark DELL, inter alia registered for computers. Furthermore, Complainant holds many domain names consisting of the trademark DELL with gTLDs as well as with ccTLDs.
The Respondent registered the Domain Name on May 13, 2006.
5. Parties’ Contentions
The Complainant objects to the use of the Domain Name by the Respondent and bases its Complaint on the following grounds:
1. The Domain Name is confusingly similar to the Complainant’s trademark.
2. The Respondent has no rights or legitimate interests in respect of the Domain Name as there is no relationship between the Respondent and the Complainant. Therefore, the Respondent has neither permission nor license to use Complainant’s trademark. There is no evidence of use of the Domain Name in connection with a bona fide offering of goods. The Respondent makes no legitimate non-commercial or fair use of the Domain Name.
3. The Respondent does not conduct any legitimate commercial or non-commercial business activity. The Respondent registered and uses the Domain Name with the only purpose to divert customers to the website under the domain name <dell-iran.com>. On said website DELL-computers are offered for sale without permission of the trademark holder. Therefore, the Domain Name was registered and is being used in bad faith.
The Complainant argues that the Respondent in the current proceeding is similar to the Respondent in a dispute concerning the domain name <delliran.com>, which domain name was transferred to the Complainant on or about May 18, 2006, by means of a UDRP procedure.
The Respondent did not reply to the Complainant’s
6. Discussion and Findings
The Policy and the Rules establish procedures intended to ensure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g. paragraph 2(a) of the Rules). In this case, the Panel finds that the Center complied with all formalities and that the Complaint was properly notified to the Respondent.
Paragraph 4(a) of the Policy sets forth three elements that must be established by the Complainant to merit a finding that the Respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:
(i) the Respondent’s 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 Respondent’s domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Domain Name consists of Complainant’s trademark and the term Iran
linked with a hyphen. Neither the hyphen nor the name of a country can abolish
the likelihood of confusion between the Complainant’s renowned trademark
and the Domain Name. It is the consensus view of the WIPO UDRP panelists that
a domain name created by the addition of a generic word or a geographical identifier
to a notorious trademark cannot be sufficiently distinguished from the trademark
(inter alia DHL Operations B.V. v. Serkan Dikmen, WIPO
Case No. D2006-1426).
Thus, the Complainant meets the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Respondent is not an affiliate of the Complainant nor does he appear to have been given any right to use the Complainant’s trademark. Although the Respondent seems to sell on the website under the Domain Name only products of the Complainant there is no disclosure or indication regarding the Respondent’s relationship with the trademark owner. The Respondent clearly pretends to be the Iranian affiliate of the Complainant. UDRP panelists have established a consensus view about the circumstances under which a reseller can have a legitimate right in a domain name that might interfere with a trademark of the producer of the offered products. One of these requirements is the aforementioned disclosure that is missing in the case at hand. Therefore, the Respondent cannot rely on such legitimate interests. Any bona fide offering of goods or legitimate non-commercial use can be ruled out under such circumstances. Further, it can be presumed that the Respondent had not been commonly known under the Domain Name as the latter was registered less than a year ago.
Therefore, the Complainant has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered or Used in Bad Faith
The Panel finds that the Respondent aims at diverting potential clients of the Complainant to a website under the Domain Name and pretends to be an affiliate of the Complainant. Additionally, the Respondent takes advantage of the absence of the Complainant from the Iranian market and intentionally exploits the image and goodwill connected with the Complainant’s trademark. This conduct of attracting Internet users to a website under a domain name confusingly similar to a trademark for commercial gain indicates bad faith.
Therefore, the Complainant has fulfilled the requirements of paragraph 4(c)(iv)
of the Policy.
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 name <dell-iran.ir> be transferred to the Complainant.
Dated: February 22, 2007