Nutanix, Inc. v. alex Millar
Claim Number: FA2006001901119
Complainant is Nutanix, Inc. (“Complainant”), represented by Lisa Greenwald-Swire of Fish & Richardson, P.C., USA. Respondent is alex Millar (“Respondent”), Montana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nutanlx.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 19, 2020; the Forum received payment on June 19, 2020.
On June 23, 2020, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <nutanlx.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 23, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 13, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@nutanlx.com. Also on June 23, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 16, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant, Nutanix Inc., is a cloud computing company that sells hyper-converged infrastructure software, cloud services, and software-defined storage.
Complainant has rights in the NUTANIX mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <nutanlx.com> domain name is confusingly similar to Complainant’s mark because it wholly incorporates Complainant’s NUTANIX mark, adding only the “.com” generic top-level domain (“gTLD”) and misspelling the mark by replacing the letter “i” with the letter “l.”
Respondent does not have rights or legitimate interests in the <nutanlx.com> domain name. Respondent is not licensed or authorized to use Complainant’s NUTANIX mark and is not commonly known by the disputed domain name. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Respondent misspells the NUTANIX mark, which demonstrates typosquatting behavior.
Respondent registered and uses the <nutanlx.com> domain name in bad faith. Respondent’s registration a domain name that is confusingly similar to Complainant's mark in itself indicates bad faith. By registering a domain name that incorporates a minor misspelling of Complainant’s NUTANIX mark, Respondent is engaged in typosquatting further indicating bad faith. Lastly, Respondent registered the at-issue domain name with actual and constructive knowledge of Complainant’s rights in the NUTANIX mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in NUTANIX.
Respondent is not affiliated with Complainant and is not authorized to use the NUTANIX mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in NUTANIX.
Respondent uses the at-issue domain name to trick internet users into believing that the domain name is sponsored by or associated with Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of its NUTANIX trademark with the USPTO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i), as do any of its other recognized registrations worldwide. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <nutanlx.com> domain name incorporates Complainant’s NUTANIX trademark with its “i” replaced by a similarly appearing “l” and with all followed by the generic top-level domain name “.com”. The slight differences between Complainant’s trademark and Respondent’s domain name do not distinguish the at-issue domain name from Complainant’s trademark pursuant to Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent’s <nutanlx.com> domain name is confusingly similar or identical to Complainant’s NUTANIX trademark. See Hallelujah Acres, Inc. v. Manila Indus., Inc., FA 805029 (Forum Nov. 15, 2006) (holding that the respondent’s <hacrs.com> domain name was confusingly similar to the complainant’s HACRES mark because it omitted the letter “e” from the mark and added the generic top-level domain “.com”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of <nutanlx.com>.
The WHOIS information for the at-issue domain name ultimately identifies the domain name’s registrant as “Alex Millar” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <nutanlx.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <nutanlx.com> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Additionally and as is discussed in more detail regarding Respondent’s bad faith, Respondent is engaged in typosquatting. Respondent’s registration and use of the <nutanlx.com> domain name to confuse internet users regarding the domain name’s sponsorship indicates that there can be neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use associated with the domain name pursuant to Policy ¶ 4(c)(iii). See Chegg Inc. v. yang qijin, FA1503001610050 (Forum Apr. 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii)”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
Respondent’s <nutanlx.com> domain name was registered and used in bad faith. As discussed below, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First and as mentioned above regarding rights and legitimate interest, Respondent is engaged in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then, as here, uses the resulting string in a domain name. The registrant hopes that internet users will: 1) inadvertently type the malformed string when searching for content related to the domain name’s target trademark and/or, 2) in viewing the domain name will confuse the domain name with its target trademark. The registrant then may use the confusion to inappropriately capitalize on the target trademark’s goodwill. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)). Respondent formed the at-issue domain name, inter alia, by swapping the “i” in Complainant’s trademark, for a visually similar “l”. When casually reading the <nutanlx.com> domain name its second-level might well pass for Complainant’s NUTANIX trademark. Also, a typing error might lead an internet user seeking Complainant into inadvertently typing the confusingly similar at-issue domain name.
Finally, Respondent registered <nutanlx.com> knowing that Complainant had trademark rights in the NUTANIX mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark as well as from Respondent’s overt typosquatting as discussed above. It is thus clear that Respondent intentionally registered the at-issue domain name to improperly exploit its trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <nutanlx.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nutanlx.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 16, 2020
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