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 Phil Young, eS, Inc., of North Andover, Massachusetts, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with Moniker Online Services, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 21, 2015. On April 21, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date the Registrar transmitted by email to the Center its verification response confirming that 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on May 4, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 24, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 26, 2015.
The Center appointed Timothy D. Casey as the sole panelist in this matter on June 4, 2015. 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 NVIDIA is a multinational corporation, known for selling graphics processing units (GPUs), mobile processor chipsets, and a range of computer products. Complainant currently offers a range of video and graphics drivers for its NVIDIA GEFORCE products.
Complainant’s first trademark, NVIDIA, US Trademark No. 1,895,559, was registered for integrated circuits in 1995, after a first use in 1993. Since then, the NVIDIA mark has expanded to include further classifications of computer hardware, software, and other goods and services.
Respondent is Phil Young / eS, Inc. The disputed domain name was registered on June 26, 2007. The disputed domain name redirects to and appears to sell software products and services to fix drivers and general PC maintenance issues. Complaint, Annex 5. Respondent has over twenty domain names containing well-known marks that redirect to . Complaint, Annex 6. Complainant first emailed a Notice of Trademark Infringement to Respondent on January 7, 2015 regarding Respondent’s use of the NVIDIA mark. 5. Parties’ Contentions A. Complainant
Complainant alleges the disputed domain name is identical or confusingly similar to Complainant’s NVIDIA trademark. Respondent uses Complainant’s trademark in its entirety, and the addition of a hyphen and the generic word “drivers” do not distinguish the disputed domain name from Complainant’s trademark. Association to Complainant’s brand is further reinforced since the word “drivers” relates to Complainant’s products.
Complainant further alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not affiliated to Complainant, nor authorized, licensed, or otherwise permitted to use Complainant’s mark. Additionally, Respondent is not commonly known by the disputed domain name, and cannot claim a legitimate, noncommercial fair use since consumers are redirected to Respondent’s site and for-sale products.
Complainant asserts that Respondent both registered and continues to use the disputed domain name in bad faith. Respondent had knowledge of Complainant’s trademark during registration because Respondent is in the same computing industry as Complainant and Respondent registered the disputed domain name well after Complainant’s trademark was registered. Complaint contends its trademark is famous. Bad faith usage is demonstrated by Respondent’s use of the disputed domain name to lure consumers searching for Complainant’s products to Respondent’s software and products for sale. This is evidenced by the fact that Respondent has over twenty registrations which relate to well known marks. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
In view of the default and the absence of any reply to the Complaint by Respondent, the discussion and findings will be based upon the contentions in the Complaint and any reasonable position that can be attributable to Respondent. Under paragraph 4(a) of the Policy, a complainant can only succeed in an administrative proceeding under the Policy if the panel finds that:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which complainant has rights; and
(ii) respondent has no rights or legitimate interest in the domain name; and
(iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the disputed domain name is confusingly similar to Complainant’s registered NVIDIA trademark. The Panel agrees with Complainant’s assertion that Respondent’s addition of “-drivers” does nothing to distinguish the disputed domain name from Complainant’s trademark. The generic term “drivers” describes goods associated with Complainant, and therefore increases the likelihood that consumers will falsely perceive an association with Complainant.
Furthermore, Complainant’s trademark and related trademarks are registered for the same computing industry that Respondent’s products fall within, so consumer confusion is only strengthened by the similarity between the trademark and the disputed domain name. B. Rights or Legitimate Interests
The Panel concludes that Respondent has no rights or legitimate interests in the disputed domain name. A legitimate interest is demonstrated by a respondent through a showing of (i) the respondent being commonly known by the disputed domain name, (ii) the disputed domain name being used for legitimate noncommercial use or fair use, or (iii) a bona fide offering of goods or services. The Panel finds that Respondent has no affiliation to Complainant, and is not authorized, licensed, or otherwise permitted by Complainant to use the trademark. Respondent has provided no evidence contrary to Complainant’s assertions.
Respondent does not appear to be commonly known by the disputed domain name. The disputed domain name redirects to , and nowhere on that website is it suggested that Respondent uses the disputed domain name to identify itself or its products.
The Panel also finds that the disputed domain name is not being used for a legitimate noncommercial or fair use. Deceptive uses of known trademarks are prohibited and Respondent attempts to use the goodwill of Complainant’s trademark for commercial gain. Users searching for Complainant’s site and/or products are redirected to Respondent’s site, which only sells Respondent’s products and services. Likewise, Respondent has not shown a bona fide offering of goods and services, in light of Respondent’s deceptive use of the trademark. C. Registered and Used in Bad Faith
The Panel finds that Respondent registered and used the disputed domain name in bad faith, and Respondent has provided no contrary evidence. There is a strong likelihood that Respondent knew about Complainant’s mark prior to registration and use, due to Complainant’s strong business presence and success in the computing industry prior to the disputed domain name being registered by Respondent. Respondent also has over twenty domain names referring to well-known marks that redirect to , which suggests that Respondent attempts to benefit from the goodwill of these marks. Furthermore, the fact that Respondent sells products related to, and in the same industry, as Complainant, supports Complainant’s allegation that Respondent intentionally uses Complainant’s trademark for commercial gain, by attracting then redirecting users searching for Complainant’s products. 7. Decision
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, be transferred to Complainant.
Timothy D. Casey
Sole Panelist
Date: June 12, 2015
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