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 Bola Branky of New York, New York, United States. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with Ascio Technologies Inc. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 13, 2016. On January 14, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 15, 2016, the Registrar transmitted by email to the Center its verification response confirming that it received a copy of the Complaint, the Domain Name is registered with it, the registrant of the Domain Name is Bola Branky, the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applies, the Domain Name has been registered to this registrant since at least July 20, 2015 and will expire on July 20, 2016, the Domain Name will remain locked during this proceeding subject to the expiry or dismissal or suspension of the case, and that the language of the Registration Agreement is English. The Registrar provided the full contact details held on its WhoIs database in respect of the Domain Name, which confirmed the identity of the registrant.
The Center verified that the Complaint satisfied the formal requirements of the 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 January 22, 2016. In accordance with the Rules, paragraph 5, the due date for Response was February 11, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 12, 2016.
The Center appointed Michael D. Adams as the sole panelist in this matter on February 18, 2016. 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.
Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent, and has been submitted to a properly constituted Panel in accordance with the UDRP and the Rules and the Supplemental Rules. 4. Factual Background
The Complainant provides cloud and virtualization software and services and is based in Palo Alto, California. By the Complainant’s own account, the Complainant has more than 500,000 customers, including 100% of the Fortune 100, and 55,000 partners worldwide, and maintains office locations in the United States, Canada, Latin America, Europe, the Asia Pacific region, Africa, and the Middle East. In addition to direct sales, the Complainant sells its products through a large network of distributors, resellers, vendors and integrators, and global partner alliances with companies like Cisco, Dell, Hitachi, Symantec, and Intel. The Complainant’s goods and services are used by large companies in numerous industries including financial services and healthcare. The Complainant’s 2014 revenues totaled USD 6,035 million. (Section V of the Complaint).
The Complainant is the registrant of , first registered on January 30, 1998. (Section V of the Complaint). In addition, the Complainant is the registrant of United States, Canadian and Community Trademarks for the term “VMWARE” in multiple International Classes including classes 41 and 42 for use in connection with numerous services in the computer software and related infrastructure fields. These trademarks have an earliest registration date of May 21, 2001. (Annex 1 of the Complaint).
Neither the Complainant nor the Respondent has provided information regarding the business of the Respondent, but the Complainant provided a screenshot of the Domain Name at the time of the Complaint submission. Based on a review of this screenshot, the Domain Name resolved to a holding page offered by “.” (Annex 3 of the Complaint). 5. Parties’ Contentions A. Complainant
The Complainant contends that by virtue of its trademark registrations, the Complainant has the requisite rights in the term “VMWARE”. The Complainant further contends that the Domain Name is effectively identical to its registered trademark VMWARE and the Complainant’s domain name , from which the Domain Name differs only from the use of a double “v” to produce a visually identical character to the “w” in the Complainant’s trademark (i.e., “vv” versus “w”). (Section V(A) of the Complaint).
The Complainant submits that the Respondent has no rights or legitimate interests to the Domain Name or any corresponding names as the Respondent is not commonly known by the term contained in the Domain Name. The Complainant further submits that the Respondent has not used the Domain Name to resolve to content other than a holding page, and that the Respondent has not demonstrated any attempt to make use of the Domain Name. Therefore, the Domain Name does not constitute a bona fide offering of goods or services, or a legitimate, noncommercial or fair use of the Complainant’s marks. The Complainant further states that there is no relationship between it and the Respondent and that it has not authorized the Respondent to use its trademark in this fashion. (Section V(B) of the Complaint).
The Complainant further contends that the use of a slight misspelling of the Complainant’s mark to create the visually identical Domain Name is for the purpose of deceiving consumers, interfering with Complainant’s business, and trading off the Complainant’s goodwill, which is commonly known as typosquatting. (Section V(C) of the Complaint).
The Complainant requests a decision that the Domain Names be transferred to it. B. Respondent
As noted above, the Respondent did not reply to the Complainant’s contentions or offer any evidence of record. 6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, the Complainant must prove: (i) that the Domain Name is identical or confusingly similar to a mark or marks in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith. It is appropriate to consider each of these requirements in turn.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences as it considers appropriate from the Respondent’s default in failing to file a response. This includes the acceptance of plausible evidence of the Complainant which has not been disputed. A. Identical or Confusingly Similar
The Panel finds that the Domain Name is effectively identical and certainly confusingly similar to the mark VMWARE in which the Complainant has registered and unregistered rights. The use of two “v”s in succession creates the appearance of a “w” and does not provide distinction between the two terms or otherwise diminish this finding. On the contrary, the intentional use of these characters in this way is evidence of typosquatting. While the Respondent has the ability to counter such evidence through facts or other explanations submitted into the record, the Respondent has submitted no such evidence. The Panel finds that the first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
As stated above, the Respondent has not offered any evidence regarding rights or legitimate interest to the Domain Name. In addition, there is no evidence of record to suggest that the Respondent owns a trademark registration for or is otherwise commonly known by the term “vmvvare” or the Domain Name. While the Panel acknowledges that it is possible for two parties to both possess rights and legitimate interests to a similar or identical term, there is no evidence to suggest that such is the case here. To the contrary, the available evidence suggests that the Respondent’s use does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use of the Domain Name. On the material in the file there is no other basis on which the Respondent could have rights or legitimate interests in the Domain Name. Thus, the Panel concludes that the Respondent has no such rights, and the second requirement of the UDRP is satisfied. C. Registered and Used in Bad Faith
Given the use of sequential “v”s to create the appearance of a “w” and mimic the Complainant’s registered trademarks and domain names and the lack of evidence that the Domain Name was registered for any legitimate purpose, the Panel finds that the Respondent has registered and used the Domain Name in an effort to typosquat on the Complainant’s existing rights. Typosquatting, in and of itself, has been found to constitute both bad faith registration and use as required by the UDRP.
In addition, the Domain Name resolves to a holding page and is not being used for any purpose other than this resolution. In appropriate circumstances, such passive holding of a domain name without evidence of any other use or intended use does not prevent a finding of bad faith registration and use. Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. As a result of the factors present in this case and a lack of any evidence to counter the Complainant’s allegations, the Panel finds that the Respondent has used the Domain Name intentionally to confuse, deceive or misdirect Internet users seeking the Complainant by creating a likelihood of confusion with the Complainant’s mark via typosquatting. This constitutes evidence of registration and use of the Domain Name in bad faith. The Panel finds that the third requirement of the UDRP is satisfied.
All three requirements of the UDRP are met and it is appropriate to direct that the Domain Name be transferred to the Complainant. 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 Domain Name, be transferred to the Complainant.
Michael D. Adams
Sole Panelist
Date: March 14, 2016
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