The Complainant is Arm Limited, United Kingdom, represented by Quinn IP Law, United States of America.
The Respondent is LIU XIN (刘欣), GUANGZHOUDANGDAIWENHUAFAZHANYOUXIANGONGSI, China. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on April 1, 2021. On April 1, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 2, 2021, 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 April 13, 2021 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 amendment to the Complaint on April 17, 2021. On April 13, 2021, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant confirmed its request that English be the language of the proceeding on April 17, 2021. The Respondent did not comment on the language of the proceeding. The Center verified that the Complaint together with the amendment to 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 April 30, 2021. In accordance with the Rules, paragraph 5, the due date for Response was May 20, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 28, 2021. The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on June 7, 2021. 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 headquartered in the United Kingdom and is a company active in the electronics industry. The Complainant offers technology-related products and services since 1990, and particularly designs and commercializes computer processors, graphics processors, digital memories and peripheral hardware and supplies software, development tools for computer hardware and also offers software and consultancy services. The Complainant claims that its processors are used as the main Central Processing Unit (“CPU”) for most mobile telephones, including those manufactured by many of the world’s major brands, and that it has sold over 180 billion of such products, reaching over 70 percent of the world’s population. Among the Complainant’s products are its NEOVERSE CPUs, which the Complainant claims are optimized CPUs, used particularly for handling a wide range of cloud-based processes. The Complainant owns a portfolio of trademarks protecting the trademarks ARM and NEOVERSE in many jurisdictions throughout the world. The registrations for the trademark ARM, of which evidence was provided by the Complainant, include, amongst others, the following trademark registrations: United States trademark registration 5,692,669, registered on March 5, 2019 and European Union trademark registration number 001112986, registered on June 8, 2000. The Complainant also provided evidence of a trademark registration for NEOVERSE, namely United States trademark registration number 5,915,615, registered on November 19, 2019 and adds that it has been using the NEOVERSE mark in commerce since at least as early as December 31, 2018. The disputed domain name was registered on February 23, 2019, and the Complainant provides evidence that it is linked to an active webpage, containing what are presumed to be pay-per-click hyperlinks (to services such as online data backups and customer management software), as well as the following offer to sell the disputed domain name: “Buy this domain. The owner of armneoverse.com is offering it for sale for an asking price of 5,590 USD!”. The Complainant also provides evidence that it sent a cease-and-desist letter to the Registrar on March 12, 2021 via email, to which the Registrar answered that due to data protection law concerns, it could not provide any user information to third parties, and that the Complainant could file a UDRP complaint. 5. Parties’ Contentions A. Complainant The Complainant essentially contends that the disputed domain name consists of a combination of its trademarks for ARM and NEOVERSE and is therefore confusingly similar to such 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. The Complainant claims that its trademarks for ARM and NEOVERSE are well-known trademarks and provides evidence that its ARM trademark has been explicitly recognized as a well-known trademark in judicial and quasi-judicial proceedings, namely in several court cases before the Spanish and Turkish courts and in an administrative proceeding before the European Union Intellectual Property Office. The Complainant also provides evidence that the disputed domain name is linked to an active webpage containing pay-per-click hyperlinks as well as an offer for sale of the disputed domain name. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name, and constitutes use in bad faith of its trademarks for ARM and NEOVERSE. The Complainant requests the transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Preliminary Issue: Language of proceedings Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. The Complainant states that, to the best of its knowledge, the language of the Registration Agreements is both in Chinese and in English. However, on April 13, 2021, the Center notified the Complainant that the language of the Registration Agreement is Chinese. The Complainant confirmed its request that English be the language of the proceeding on April 17, 2021, while the Respondent did not comment on the language of the proceeding and did not submit any arguments on the merits. The Panel has carefully considered all elements of this case, in particular, the Complainant’s requests that the language of proceedings be English; the fact that the Respondent did not comment on the language of the procedure and did not submit arguments on the merits (the Panel notes that the Respondent had the opportunity to respond in either English or Chinese); the fact that the website hosted at the disputed domain name is exclusively in English, from which the Panel deducts that the Respondent understands, and is able to communicate in English; and the fact that Chinese as the language of proceedings could lead to unwarranted costs for the Complainant. In view of all these elements, the Panel rules that the language of proceedings shall be English. 6.2. Discussion and Findings on the merits The Policy requires the Complainant to prove three elements: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (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. Based on the evidence and arguments submitted, the Panel’s findings are as follows: A. Identical or Confusingly Similar The Panel finds that the Complainant has shown that it has valid rights in the marks ARM and NEOVERSE, based on its intensive use and registration of the same as trademarks in a large number of jurisdictions. Moreover, as to confusing similarity, the disputed domain name consists of the combination of the Complainant’s registered trademarks for ARM and NEOVERSE followed by the generic Top-Level Domain (“gTLD”) suffix “.com”. The Panel refers to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7, which states: “where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing”. The Panel concludes that the disputed domain name contains the entirety of the Complainant’s two trademarks, which remain easily recognizable. Moreover, the addition of the applicable gTLD (“.com” in this case) is viewed as a standard registration requirement, and may as such be disregarded by the Panel, see WIPO Overview 3.0, section 1.11.1. Accordingly, the Panel rules that the disputed domain name is confusingly similar to the Complainant’s registered trademarks, and that the Complainant has satisfied the requirements of the first element under the Policy. B. Rights or Legitimate Interests On the basis of the evidence and arguments submitted, the Panel finds that the Complainant makes out a prima facie case that that the Respondent is not, and has never been, an authorized reseller, service provider, licensee or distributor of the Complainant, is not a bona fide provider of goods or services under the disputed domain name and is not making legitimate noncommercial use or fair use of the Complainant’s trademarks. The Panel also notes that the Respondent is not commonly known by the disputed domain name. As such, the Panel finds that the burden of production regarding this element shifts to the Respondent (see WIPO Overview 3.0, section 2.1). However, no evidence or arguments have been submitted by the Respondent in reply. Moreover, upon review of the facts, the Panel notes that the disputed domain name directs to an active webpage containing what are presumed to be pay-per-click hyperlinks to various third party providers of goods and services, including online data backup services and customer management software. In the Panel’s view, this shows the Respondent’s intention to divert Internet users for commercial gain to such third party websites, by taking unfair advantage of the goodwill and reputation of the Complainants trademarks for ARM and NEOVERSE (see also previous WIPO UDRP decisions in this sense such as Maker Studios, Inc. v. ORM LTD / Contact Privacy Inc. Customer 0137258808,WIPO Case No. D2014-0918 and Comerica Incorporated v. Balticsea LLC / Contact Privacy Inc. Customer 0131519121,WIPO Case No. D2013-0932). Finally, the Panel also notes that the Respondent’s registration of the disputed domain name does not predate the Complainant’s use of either its ARM or NEOVERSE trademarks. The Respondent registered the disputed domain name on February 23, 2019 while the Complainant has prior use rights and trademark registrations for its ARM mark (including the abovementioned European Union trademark registration 001112986, registered on June 8, 2000), as well as prior use rights in the NEOVERSE mark, i.e. since at least as early as October 16, 2018, date on which the Complainant’s NEOVERSE line of products were publicly announced and promoted (see “www.arm.com/company/news/2018/10/announcing-arm-neoverse”), as well as a subsequent trademark registration (see the abovementioned United States trademark registration number 5,915,615, registered on November 19, 2019). On the basis of the foregoing, the Panel considers that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply, and that the Complainant have satisfied the requirements of the second element under the Policy. C. Registered and Used in Bad Faith The registration of the disputed domain name, which incorporates the Complainant’s trademarks for ARM and NEOVERSE in their entirety, is clearly intended to mislead and divert consumers away from the Complainant’s official websites to the website linked to the disputed domain name. Given the Respondent’s clearly intentional targeting of the Complainant’s famous marks, the Panel finds that the registration of the disputed domain name was obtained in bad faith. Moreover, even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned rights in the trademarks ARM and NEOVERSE. In the Panel’s view, the preceding elements clearly indicate the bad faith of Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain name in bad faith. As to use of the disputed domain name in bad faith, the website linked to the disputed domain name currently displays what are presumed to be pay-per-click hyperlinks to various third party providers of goods and services, including online data backup services and customer management software, which shows that the Respondent is misleading and diverting consumers for commercial gain to the websites of such third parties as described under paragraph 4(b)(iv) of the Policy. Moreover, the website linked to the disputed domain name currently also displays a message that the disputed domain name is for sale, and that the Respondent is offering it for sale for an asking price of USD 5,590. This leads the Panel to conclude that the Respondent is using the disputed domain name to sell it in excess of the out-of-pocket costs related to the disputed domain name. In this regard, paragraph 4(b)(i) of the Policy states that registering a domain name “primarily for the purpose of selling, renting, or otherwise transferring the domain name to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name” constitutes direct evidence of bad faith. Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant have satisfied the requirements of the third element under the Policy. 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 Deanna Wong Wai Man
Sole Panelist
Date: June 18, 2021
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