WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
VMWARE, Inc. v. MDS Distributions
Case No. D2016-1084
1. The Parties
The Complainant is VMWARE, Inc. of Palo Alto, California, United States of America ("United States"), represented by CSC Digital Brand Services AB, Sweden.
The Respondent is MDS Distributions of Starke, Florida, United States.
2. The Domain Name and Registrar
The disputed domain name <vnnware.com> is registered with Melbourne IT Ltd (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on May 31, 2016. On June 1, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 2, 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 June 13, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 3, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 4, 2016.
The Center appointed William F "Bill" Hamilton as the sole panelist in this matter on July 29, 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 is a global leader in cloud infrastructure providing virtualization software solutions. The Complainant has more than 500,000 customers, including 100 percent of the Fortune 100, and 55,000 partners worldwide. The Complainant is the owner of various trademark registrations in the United States, Canada and elsewhere. The earliest of the United States registrations of VMWARE (the "Mark") dates back to September 2001. The Complainant also owns and conducts business under numerous domain names, including <vmware.com>.
The disputed domain name was registered on December 21, 2015.
5. Parties' Contentions
The Complainant asserts that the disputed domain name is confusingly similar to the Complainant's Mark because the disputed domain name incorporates the Complainant's mark entirely except that the letter "m" is changed to "nn". The Complainant asserts the distinction is immaterial and that "nn" is confusingly similar to "m". The Complainant asserts that the Respondent has no rights or legitimate interests in the Mark or the disputed domain name. Finally, the Complainant asserts the disputed domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name wholly incorporates the Complainant's registered Mark with the exception of replacing the letter "m" with the letters "nn". Such minor and insignificant alteration does not avoid confusing similarity. Indeed, the choice of the letters "nn" to replace "m" creates a visual appearance of confusing similarity. See Dow Jones & Company, Inc. and Dow Jones, L.P. v. Powerclick, Inc., WIPO Case No. D2000-1259 (transferring <wwwbarrons.com>, <wwwbarronsmag.com>, <wwwwdowjones.com>, and <wwwwwsj.com>); RX America, L.L.C. v. Tony Rodolakis, WIPO Case No. D2005-1190 (transferring <rx-america.net>) (typosquatting); Wachovia Corporation v. Peter Carrington, WIPO Case No. D2002-0775 (transferring <wochovia.com>, <wachvia.com>, and <wachovai.com>).
The Panel finds that the disputed domain name is confusingly similar to the Complainant's Mark and that the first element of paragraph 4(a) of the Policy has been met.
B. Rights or Legitimate Interests
There is no evidence that the Respondent has ever conducted business under the name "vnnware". The Complainant has affirmatively disavowed any licensing or other business relationship with the Respondent. Nor does it appear that the disputed domain name is being utilized by the Respondent for a noncommercial purpose. The Respondent has failed to respond to the Complainant's contentions, failed to respond to the Complainant's three cease and desist letters, and failed to justify or explain its registration of the disputed domain name. See Accor v. Eren Atesmen, WIPO Case No. D2009-0701 (transferring <accorreviews.com>).
The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has met the second element of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The Complainant's mark is globally recognized. It is inconceivable that the Respondent would by happenstance adopt the Complainant's Mark with the slight modification of changing the "m" to "nn". The Panel notes that "nn" may be easily confused with "m" when viewed quickly, at a distance, or if the user is visually impaired. Moreover, any reasonable Internet search would have revealed the existence of the Complainant's Mark to the Respondent. Various Internet search engines actually suggest that "vnnware" is a misspelling of "vmware". These circumstances may create an inference of bad faith registration and use. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003 (transferring <telstra.org>); Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226 (transferring <christiandior.com> and <christiandior.net>); Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415 (transferring <proforcekarate.com> and <proforcemartialarts.com>). Given the notoriety of the Complainant's Mark and the clear typosquatting of the disputed domain name, that the disputed name does not currently resolve to an active website is immaterial and cannot avoid a bad faith finding under the Policy.
The Panel finds that the disputed domain name was registered and is being used in bad faith. Thus the third element of paragraph 4(a) of the Policy is met.
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 <vnnware.com> be transferred to the Complainant.
William F "Bill" Hamilton
Date: August 3, 2016