Advanced Micro Devices, Inc. v. Muhammad Hasbiallah Abbad
Claim Number: FA2302002033267
Complainant is Advanced Micro Devices, Inc. (“Complainant”), represented by Bradley L. Cohn of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, Illinois, USA. Respondent is Muhammad Hasbiallah Abbad (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <drivers-amd.com>, registered with NameCheap, Inc..
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.
Ho-Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to Forum electronically on February 24, 2023; Forum received payment on February 24, 2023.
On February 24, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <drivers-amd.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 February 28, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 20, 2023 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@drivers-amd.com. Also on February 28, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On March 24, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Ho-Hyun Nahm, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
i) Complainant, Advanced Micro Devices, Inc., manufactures and distributes computer hardware and software, semiconductor devices, microprocessor chips, and related goods and services. Complainant has rights in the AMD mark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,449,383, registered on July 28, 1987). The disputed domain name is confusingly similar to Complainant’s AMD mark as it contains Complainant’s mark in its entirety, merely adding the descriptive term “drivers”, a hyphen, and the generic top-level domain (“gTLD”) “.com” to form the disputed domain name.
ii) Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s AMD 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 uses the disputed domain name to offer counterfeit goods for sale. Respondent registered and uses the disputed domain name to pass off as Complainant.
iii) Respondent registered and uses the disputed domain name in bad faith. Respondent registered and uses the disputed domain name to pass off as Complainant. Respondent registered and uses the disputed domain name with constructive and/or actual knowledge of Complainant’s rights in the AMD mark.
B. Respondent
Respondent did not submit a response in this proceeding.
1. The disputed domain name was registered on August 3, 2022.
2. Complainant has established rights in the AMD mark based upon registration with the USPTO (e.g., Reg. No. 1,449,383, registered on July 28, 1987).
3. The disputed domain name’s resolving website prominently displays the AMD mark and hosts links to counterfeit versions of Complainant’s products and drivers.
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”).
Complainant asserts rights to the AMD mark based upon registration with the USPTO (e.g., Reg. No. 1,449,383, registered on July 28, 1987). Registration of a mark with the USPTO is considered a valid showing of rights under Policy ¶ 4(a)(i). As Complainant has provided evidence of registration of the AMD mark with the USPTO and other agencies around the world, the Panel finds that Complainant has established rights in the mark under Policy ¶ 4(a)(i).
Complainant contends that the disputed domain name <drivers-amd.com> is confusingly similar to Complainant’s AMD mark. The addition of a descriptive term, a hyphen, and a gTLD does not sufficiently distinguish a disputed domain name from a complainant’s mark. See Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> domain name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”); see also Eastman Chem. Co. v. Patel, FA 524752 (Forum Sept. 7, 2005) (“Therefore, the Panel concludes that the addition of a term descriptive of Complainant’s business, the addition of a hyphen, and the addition of the gTLD ‘.com’ are insufficient to distinguish Respondent’s domain name from Complainant’s mark.”). The disputed domain name contains Complainant’s mark in its entirety, merely adding the descriptive term “drivers,” a hyphen, and the generic top-level domain (“gTLD”) “.com” to form the disputed domain name. Therefore, the Panel finds that the disputed domain name is confusingly similar to the AMD mark under Policy ¶ 4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
Complainant claims that Respondent does not have rights or legitimate interests in the disputed domain name as Respondent is not licensed or authorized to use Complainant’s AMD mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The unmasked WHOIS information for the disputed domain name lists the registrant as “Muhammad Hasbiallah Abbad.” Complainant further asserts it has not licensed or otherwise authorized Respondent to use Complainant’s AMD mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
Complainant argues Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use, instead, Respondent uses the disputed domain name to offer counterfeit goods for sale. The use of a disputed domain name to sell counterfeit products is evidence that a respondent does not use the disputed domain name for a bona fide offering of goods or services per Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii). See eLuxury.com Inc. v. WangJunJie, FA 1075554 (Forum Nov. 30, 2007) (concluding that the sale of counterfeit products is evidence that the respondent does not make a bona fide offering of goods or services or a legitimate noncommercial or fair use of a disputed domain name); see also Hewlett-Packard Co. v. Inversiones HP Milenium C.A., FA 105775 (Forum Apr. 12, 2002) (“Respondent’s use of the confusingly similar domain name [<hpmilenium.com>] to sell counterfeit versions of Complainant’s [HP] products is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i).”). As support, Complainant provides screenshots of the disputed domain name’s resolving website showing links to counterfeit versions of Complainant’s products and drivers. The Panel thus finds Respondent does not use the disputed domain name for any bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant contends Respondent registered and uses the disputed domain name in bad faith as Respondent registered and uses the disputed domain name to pass off as Complainant. The use of a disputed domain name to pass off as a complainant is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (finding the respondent registered and used the at-issue domain name in bad faith because it used the name to pass off as the complainant and offer for sale competitive, counterfeit goods); see also Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”). Complainant points to the prominent and repeated displaying of its AMD mark and the offering of AMD’s drivers on the disputed domain name’s resolving website. Therefore, the Panel finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Complainant also contends that Respondent registered and uses the disputed domain name with constructive and/or actual knowledge of Complainant’s rights in the AMD mark. The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, it may find actual knowledge through various factors such as the manner of use of the disputed domain name, the notoriety of a complainant’s mark, etc. In support, Complainant points to the incorporation of Complainant’s mark in the disputed domain name, the use of Complainant’s mark on the disputed domain name’s resolving website, and the offering of counterfeit versions of Complainant’s goods on the disputed domain name’s resolving website. The Panel infers, due to the notoriety of Complainant’s mark and the manner of use of the disputed domain name that Respondent had knowledge of Complainant’s rights in the AMD mark at the time of its registering the disputed domain name, and finds that Respondent registered the disputed domain in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <drivers-amd.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho-Hyun Nahm, Esq., Panelist
Dated: March 27, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page