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 Whois Agent, Whois Privacy Protection Service, Inc. of Kirkland, Washington, United States / Raymond Morgan of Trego, Montana, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with N, Inc. (N LLC) (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 11, 2016. On August 11, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 11, 2016, 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 12, 2016, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on August 12, 2016.
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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 4, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 5, 2016.
The Center appointed Evan D. Brown as the sole panelist in this matter on September 9, 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 well-known and award-winning provider of cloud infrastructure services. It owns several trademark registrations in a number of countries for the mark VMWARE (the “Mark”), including United States Trademark No. 2764540, registered on September 16, 2003 for computer software. The Respondent registered the disputed domain name on May 17, 2016. As of the date of the filing of the Complaint, the disputed domain name was not being used in connection with an active website. 5. Parties’ Contentions A. Complainant
The Complainant contends that the disputed domain name is identical or confusingly similar to the Complainant’s registered trademarks; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name, the Complainant must prove each of the following, namely that:
(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 has provided evidence of its registrations of the Mark in several countries, including registrations which predate the registration of the disputed domain name, such as United States Trademark No. 2764540, registered on September 16, 2003 for computer software. On the basis of these registrations, the Panel is satisfied that the Complainant has rights in the Mark.
The Panel also finds that the disputed domain name is confusingly similar to the Mark.
The Complainant characterizes the present situation as one of “typosquatting”. Though the Panel would not choose that term to describe the Respondent’s conduct in this case, the issue is a technical one, not outcome determinative.
The term “typosquatting”—as a portmanteau of “typographical error” and “cybersquatting”—presumes an opportunistic act on the part of a domain name registrant to prey on a user’s accidental mistyping of another party’s mark. In this situation, one would not plausibly type the disputed domain name—even by accident— while trying to visit a site operated by the Complainant. Desiring to type the letter “m”, the typical English-language keyboard user would not likely slip up and type the letters “r” and “n”. Similarly, one intending to type “w” would not be expected to mistakenly type “v” twice in succession.
So this case is not an example of pure “typosquatting”.
But we need not detain ourselves any longer on semantics. This case resolves the same way, whether one calls it “typosquatting” or more accurately labels it what it probably is—plain old intent to deceive. The disputed disputed domain name in a web browser address bar or in the “From:” line of an email message looks like the Mark. This similarity in appearance is sufficient to convince the Panel that the Complainant has satisfied the first element of the UDRP. B. Rights or Legitimate Interests
If a complainant makes a prima facie showing that a respondent lacks rights or legitimate interests in respect of the disputed domain name, the burden of demonstrating rights or legitimate interests shifts to the respondent. See L’Oréal v. Zhao Jiafei,WIPO Case No. D2015-1458. The Complainant in this case has made such a showing by asserting, among other things, that the Respondent is not commonly known by the disputed domain name, and has not demonstrated any attempt to make legitimate use of the disputed domain name and website.
Viewed a certain way, the disputed domain name is comprised of a rather arbitrary assemblage of letters. (One may dispute such arbitrariness in light of the Respondent’s apparent intentions to mimic the Mark, discussed in the sections above and below). Given that arbitrariness, it would not be implausible for the Respondent to have registered the domain name with demonstrable preparations to use it in connection with something that the letters stand for. But since the Respondent remained silent, we have only the assertions that remain perched and unmoved atop the prima facie showing pedestal on which the Complainant placed them. The Panel finds that the Complainant has satisfied the second element of the UDRP. C. Registered and Used in Bad Faith
As noted in the discussion about the first element of the UDRP, above, the Panel finds that the Respondent registered the disputed domain name because it looks like the mark. Given how well-known the mark is, there is no easily conceivable reason for registering or using the disputed domain name that the Respondent could make that would not be characterized as bad faith under the UDRP factors. Absent any explanation from the Respondent as to his motives, the Panel finds that the Complainant has satisfied this third element under the UDRP. 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 the Complainant.
Evan D. Brown
Sole Panelist
Date: September 23, 2016
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