WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Nvidia Corporation v. Fundacion Private Whois / PPA Media Services, Ryan G Foo
Case No. D2013-1361
1. The Parties
The Complainant is Nvidia Corporation of Santa Clara, California, United States of America, represented by SafeNames Ltd., United Kingdom of Great Britain and Northern Ireland.
The Respondent is Fundacion Private Whois of Panama City, Panama / PPA Media Services, Ryan G Foo of Santiago, Chile.
2. The Domain Name and Registrar
The disputed domain name <nvidea.com> is registered with Internet.bs Corp. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 31, 2013. On July 31, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 8, 2013, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on August 8, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. On the same date, the Complainant filed an amended Complaint.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 9, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was August 29, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 30, 2013.
The Center appointed Ross Wilson as the sole panelist in this matter on September 11, 2013. 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, a company originally incorporated in 1993 in the State of California in the United States of America, manufactures products used to power a range of products including smart phones and supercomputers. The products include graphic processors, wireless communications processors, PC platform chipsets digital media player software. The Complainant is internationally recognized as a global leader within the semiconductors industry for innovation. It has more than 5,500 patents issued, allowed or filed worldwide. Its revenue in the past year was USD 4.3 billion.
The Complainant’s NVIDIA trademark has been registered in over 70 countries with the first being registered on May 23, 1995.
The disputed domain name was registered on March 24, 2002.
5. Parties’ Contentions
The Complainant contends that the disputed domain name is identical or confusingly similar to its trademark differing by only one letter. The Complainant declares that the Respondent has never been licensed, authorised or affiliated with the Complainant and therefore has no rights or legitimate interests in respect of the disputed domain name. Finally, the Complainant states that the disputed domain name was registered and is being used in bad faith as the Respondent had actual knowledge of the Complainant’s rights by registering a confusingly similar domain name to appropriate the Complainant’s goodwill and to receive a financial benefit.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
The burden is on the Complainant to prove each of the three elements set out in paragraph 4(a) of the Policy:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant points out that the key difference between the Complainant’s trademark and the disputed domain name is the obvious misspelling of the trademark where the second letter “i” is replaced with the letter “e”. Complaints involving misspellings are common and are known as “typosquatting”. The WIPO Overview of WIPO Panel Views on Selected URDP Questions, Second Edition (“WIPO Overview 2.0”) indicates that the consensus view is that a domain name which contains a common or obvious misspelling of a trademark normally will be found to be confusingly similar to such trademark, where the misspelled trademark remains the dominant or principal component of the domain name. In this case the Panel is of the view that the misspelling of the Complainant’s mark could easily be mistaken for that of the Complainant leading to Internet user confusion. See Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775 where the conduct of a minor misspelling was found to create a virtually identical and/or confusingly similar mark to the complainant’s trademark under paragraph 4(a)(i) of the Policy.
The Panel finds that the Complainant’s trademark is readily recognizable within the disputed domain name. Therefore, the Complainant has proven under the circumstances that the disputed domain name is confusingly similar to the trademark in which it has demonstrable rights and in doing so has satisfied the first element of the Policy.
B. Rights or Legitimate Interests
According to paragraph 4(c) of the Policy, rights to or legitimate interests in a domain name can be demonstrated if a respondent:
- before receiving any notice of the dispute, was using the domain name in connection with a bona fide offering of goods or services; or
- has been commonly known by the domain name; or
- is making legitimate noncommercial or fair use of the domain name, without intention for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There is no evidence before the Panel to show that the Respondent has any rights or legitimate interests in the disputed domain name. The Respondent has chosen to use a domain name confusingly similar to the Complainant’s trademark without authorisation by the Complainant. Based on the evidence provided by the Complainant the disputed domain name redirects Internet users to another website address that incorporate the Complainant’s (without any misspelling). The website uses images and textural elements which deceive the user into thinking that they have arrived at a website which is a legitimate source of a Nvidia driver software. Users are then invited to download and install a Nvidia software. While the site gives the impression that the software is free and trustworthy the Complainant’s analysis indicates that the software has been modified to contain malware. During the installation of the software a window pops up and appears to scan the users’ computers. A message is then displayed that falsely states that there are issues with the computers that need fixing and which is only possible through the purchase of a full license for the software through the browser. The users then find that they are unable to exit the installation process or close off the program until they chose to pay for the software or reboot. In this Panel’s view, no rights or legitimate interests derive from such use of the disputed domain name which is confusing similar to the Complainant’s trademark.
The Complainant has denied having any connection or affiliation with the Respondent and that the use of its trademark is without license or authorisation. In Guerlain S.A. v. Peikang, WIPO Case No. D2000-0055, the panel stated, “in the absence of any license or permission from the Complainant to use any of its trademarks or to apply for or use any domain incorporating those trademarks, it is clear that no actual or contemplated bona fide or legitimate use of the domain name could be claimed by Respondent”.
The Panel considers the Respondent lacks rights or legitimate interests. See Areva v. Domains by Proxy, Inc./ Sheng Xiang, WIPO Case No. D2011-0061 where the panel concluded that when the respondent registered the domain name, it must have known that it was a trademark of the complainant and deliberately registered the domain name precisely because it would be recognized as such. As stated by the panel in Hertz System, Inc. v. Domainproxyagent.com/Compsys Domain Solutions Private Limited, WIPO Case No. D2009-0615 “[m]anifestly, the attraction of the Domain Name to the registrants was not any right or legitimate interest in respect of the Domain Name, but its fame and attractive quality derived from the presence of the well-known name and service mark of the Complainant”.
Despite the opportunity provided through this administrative proceeding the Respondent has chosen not to rebut the Complainant’s case or assert any rights or legitimate interests in the disputed domain name.
Based on the above, the Panel considers the Complainant has made out an unrebutted prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name. The Panel is satisfied that the Complainant has proven the second element of the Policy.
C. Registered and Used in Bad Faith
For the purposes of determining if there was bad faith registration and use, the Panel considered the circumstances of the registration and use of the disputed domain name as set out in paragraph 4(b) of the Policy, noting that it does not impose any limitation on how the registration and use of the disputed domain name in bad faith may be evidenced.
Paragraph 4(b) of the Policy sets out what is to be considered as evidence of the registration and use of a domain name in bad faith including “(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location”.
The Complainant contends that the disputed domain name was registered with actual knowledge of the Complainant’s rights in the trademark NVIDIA. The Complainant points out that using that knowledge the Respondent sought to appropriate the goodwill of the Complainant by registering a confusing similar domain name for the purposes of making a financial gain. Further, the Complainant considers that the Respondent’s website was merely set up in an attempt to extort money from unsuspecting Internet users.
The Panel considers that the Complainant has made a case that the Respondent has registered and is using the disputed domain name in bad faith. In the Panel’s view the Respondent’s registration of the disputed domain name represents a deliberate disregard of the Complainant’s trademark rights. In the Panel’s view, the Respondent clearly knew of the Complainant’s well-known trademark at the time of registration because the Complainant’s mark is used in its entirety in the disputed domain name, albeit with a misspelling. As stated in Oakley, Inc. v. Joel Wong/BlueHost.com- INC, WIPO Case No. D2010-0100 “It is therefore inconceivable to the Panel that the Respondent registered the disputed domain name without prior knowledge of the Complainant’s rights”. Also, as expressed in Singapore Airlines Limited v. European Travel Network, WIPO Case No. D2000-0641, where the selection in that case of the domain names is so obviously connected to the complainant’s trademark, their very use by someone with no connection with the company suggests opportunistic bad faith.
The Panel finds it most likely that the disputed domain name was registered and used by the Respondent in an intentional attempt to benefit from the goodwill of the Complainant’s trademark for financial gain.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <nvidea.com> be transferred to the Complainant.
Date: September 25, 2013