WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Nvidia Corporation v. Domain MANAGER, Domain Brokers
Case No. D2016-0462
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 Domain MANAGER, Domain Brokers of St Johns, Saint Vincent and the Grenadines.
2. The Domain Name and Registrar
The disputed domain name <wwwnvidia.com> is registered with BigRock Solutions Ltd (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 8, 2016. On March 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 9, 2016, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the 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 Respondent of the Complaint, and the proceedings commenced on March 29, 2016. In accordance with the Rules, paragraph 5, the due date for Response was April 18, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 19, 2016.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on April 25, 2016. 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 Nvidia Corporation, founded in 1993 in California, United States of America, is a technology company which started as a graphics chip company and has become one of the fastest-growing companies in the semiconductor industry, with over 8,000 employees worldwide and the richest portfolio of graphics patents in the world (over 7,300 patents). Its business focuses on the following four markets: professional visualization, gaming, data centers and auto, where the Complainant offers for each market a platform of processors, tools, software and marketing.
The Complainant is the owner of the trademark NVIDIA ("the Mark"), registered in over 70 jurisdictions, starting with the following: United States trademark No. 1,895,559, registered on April 20, 1993.
The Complainant is also the registrant of several domain names containing the Mark, including among others, <nvidia.com>.
The disputed domain name <wwwnvidia.com> was registered on December 2, 2002.
5. Parties' Contentions
(i) The Complainant submits that the disputed domain name reproduces the Mark, in which the Complainant has rights, and is confusingly similar to the Mark insofar as the disputed domain name, <wwwnvidia.com>, contains the Mark in its entirety. The Complainant also asserts that the addition of the letters "www" whilst omitting a full stop after the said letters simply adds confusion to the Internet users who mistype the domain and does not serve to distinguish the disputed domain name <wwwnvidia.com> from the Mark.
(ii) The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. Furthermore, the Complainant contends that there is no relationship between the Respondent and the Complainant and that the Respondent does not appear to be known by the disputed domain name.
(iii) The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith. The Complainant alleges that the Respondent had knowledge of the Mark when registering the disputed domain name, and did so unfairly, for commercial gain, and with the purpose of selling the disputed domain name, being engaged in a pattern of conduct of registering domain names.
(iv) The Complainant submits that the Respondent is using the disputed domain name to disrupt its business.
(v) The Complainant requests that the disputed domain name be transferred to the Complainant.
The Respondent did not reply to the Complainant's contentions.
Before the commencement of this proceeding, the Respondent merely replied to the Complainant's representative's cease and desist demand with an offer to enter into negotiations to buy the disputed domain name as follows: "Would you like to purchase this domain to avoid long and costly processes?". The Respondent did not specify a monetary value for the disputed domain name.
6. Discussion and Findings
6.1. Procedural Aspects
As aforementioned, no Response was received from the Respondent within the time limit set by the Policy and the Rules. The Respondent is thus formally in default.
Under the Rules, paragraphs 5(f) and 14(a), the effect of a default by the Respondent is that, in the absence of exceptional circumstances, the Panel shall proceed to a decision on the basis of the Complaint.
Under paragraph 4(a) of the Policy, it is still the Complainant's burden to establish that all three of the required criteria for a transfer of the disputed domain name have been met, even when the respondent is in default.
Under paragraph 14(b) of the Rules, the Panel is empowered to draw such inferences from the Respondent's default as it considers appropriate under the circumstances.
In this case, the Panel finds that as a result of the default, the Respondent has failed to rebut any of the reasonable factual assertions that are made and supported by evidence submitted by the Complainant. In particular, by defaulting and failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy or otherwise, from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.
Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant's arguments that the Respondent has acted in bad faith.
6.2. Requirements of Paragraph 4(a) of the Policy
A. Identical or Confusingly Similar
In comparing the Mark with the disputed domain name <wwwnvidia.com>, it is evident that the latter consists solely of the Mark, preceded by the letters "www", and followed by the generic Top-Level Domain ("gTLD") ".com".
It has been held that the addition of the letters "www" to a domain name is a well-known practice of typosquatters looking to take advantage of Internet users who omit a full stop after "www" when entering a website address and can therefore be discounted when considering confusing similarity. See Realm Entertainment Limited v. Domains by Proxy, LLC / Engin Talih, WIPO Case No. D2015-1858.
It is also well established that the gTLD ".com" (or any other gTLD) does not generally affect the assessment of a domain name for the purpose of determining identity or confusing similarity. See Société Générale and Fimat International Banque v Lebanon Index/La France DN and Elie Khouri, WIPO Case No. D2002-0760.
The Panel finds that the disputed domain name <wwwnvidia.com> is confusingly similar to the Mark, which is incorporated in its entirety.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that with regard to paragraph 4(a)(ii) of the Policy this could result in the often impossible task of proving a negative proposition, requiring information that is primarily if not exclusively within the knowledge of a respondent.
Thus, the consensus view of UDRP panels is that paragraph 4(c) of the Policy shifts the burden of production of evidence to the respondent to come forward with evidence of rights or legitimate interests in a domain name, once the complainant has made a prima facie showing, as the Panel finds the Complainant has made in this case. See Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
As previously noted, the Respondent offered no reason for selecting the disputed domain name. There is no evidence that the Respondent is known by the disputed domain name or uses the disputed domain name in a business.
On the contrary, the Complainant has credibly argued that (i) the Respondent and the Complainant have no relationship, (ii) the Respondent is not commonly known by the disputed domain name and (iii) the Respondent is not making a noncommercial or fair use of the disputed domain name, as it is used as a rotating redirection site.
In the circumstances, the Panel concludes that the Complainant has established the requirement of paragraph 4(a)(ii) of the Policy with respect to the disputed domain name.
C. Registered and Used in Bad Faith
The Panel notes that the Respondent used the Mark to divert customers to sites which encourage Internet users to enter surveys (thus creating the risk of phishing personal data from unsuspecting Internet users) or to sign up to online casino sites, all for commercial gain.
As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant's arguments that the Respondent acted in bad faith by creating confusion to the detriment of the Complainant by registering the disputed domain name confusingly similar to the Mark.
It is established in prior UDRP decisions that where the respondent knew or should have known of a trademark prior to registering the disputed domain name, such conduct may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Weetabix Limited v. Mr. J. Clarke, WIPO Case No. D2001-0775.
In this case, considering the facts (i) that the Respondent owns over 4,000 domain names (which suggests that the Respondent is in the business of speculating in domain names), out of which over 300 begin with "www" followed by a registered trademark, and (ii) that the Mark is a coined term exclusively connected to the Complainant, the Panel finds that it is close to impossible that the Respondent chose to register the disputed domain name randomly with no knowledge of the Mark. See Barney's Inc. v. BNY Bulletin Board, WIPO Case No. D2000-0059; Kate Spade, LLC v. Darmstadter Designs, WIPO Case No. D2001-1384 citing Cellular One Group v. Paul Brien, WIPO Case No. D2000-0028; and SembCorp Industries Limited v. Hu Huan Xin, WIPO Case No. D2001-1092.
Furthermore, it has been established in prior UDRP decisions that the registration of a domain name confusingly similar to a trademark by any entity that has no relationship to that trademark may be, in certain circumstances, sufficient evidence of bad faith registration and use. See Pfizer Inc. v. NA, WIPO Case No. D2005-0072; AT&T Corp. v. John Zuccarini d/b/a Music Wave and RaveClub Berlin, WIPO Case No. D2002-0440; America Online, Inc. v. Anson Chan, WIPO Case No. D2001-0004; Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163 and Research In Motion Limited v. Dustin Picov, WIPO Case No. D2001-0492.
In addition, the Panel notes that many UDRP panels have held that bad faith use of a domain name by a respondent may also result from the fact its good faith use is in no way plausible (see Audi AG v. Hans Wolf, WIPO Case No. D2001-0148), considering the specificity of the activity.
Finally, some UDRP panels have held that in certain circumstances, registrants of domain names have an affirmative duty to abstain from registering and using a domain name which is either identical or confusingly similar to a prior trademark held by others and that contravening that duty may constitute bad faith. See Policy, paragraph 2(b); Nike, Inc. v. B. B. de Boer, WIPO Case No. D2000-1397; Nuplex Industries Limited v. Nuplex, WIPO Case No. D2007-0078; Mobile Communication Service Inc. v. WebReg, RN, WIPO Case No. D2005-1304; BOUYGUES v. Chengzhang, Lu Ciagao, WIPO Case No. D2007-1325; Media General Communications, Inc. v. Rarenames, WebReg, WIPO Case No. D2006-0964; and mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141.
The Panel concludes in the light of all these circumstances that the Respondent's registration and use of the disputed domain name constitute bad faith, and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case.
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 <wwwnvidia.com> be transferred to the Complainant.
Date: May 2, 2016