DECISION

 

Advanced Micro Devices, Inc. v. zhang an

Claim Number: FA2408002109773

 

PARTIES

Complainant is Advanced Micro Devices, Inc. ("Complainant"), represented by Bradley L. Cohn of Pattishall, McAuliffe, Newbury, Hilliard & Geraldson LLP, Illinois, USA. Respondent is zhang an ("Respondent"), Hong Kong.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <inamd2.com> and <inamd3.com>, registered with Gname.com Pte. Ltd.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on August 5, 2024; Forum received payment on August 5, 2024.

 

On August 6, 2024, Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <inamd2.com> and <inamd3.com> domain names are registered with Gname.com Pte. Ltd. and that Respondent is the current registrant of the names. Gname.com Pte. Ltd. has verified that Respondent is bound by the Gname.com Pte. Ltd. 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 August 7, 2024, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of August 27, 2024 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@inamd2.com and postmaster@inamd3.com. Also on August 7, 2024, the Chinese and English 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 in Chinese and English.

 

On August 28, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Sandra J. Franklin 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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDING

Under ICANN Rule 11, the Panel determines that this proceeding will be conducted in English, based on evidence in the record that Respondent is conversant in English.

 

PARTIES' CONTENTIONS

A. Complainant

1.       Respondent's <inamd2.com> and <inamd3.com> domain names are confusingly similar to Complainant's AMD mark.

 

2.       Respondent does not have any rights or legitimate interests in the <inamd2.com> and <inamd3.com> domain names.

 

3.       Respondent registered and uses the <inamd2.com> and <inamd3.com> domain names in bad faith.

 

B. Respondent did not file a Response.

 

FINDINGS

Complainant is a well-known technology provider and holds a registration for the AMD mark with the United States Patent and Trademark Office ("USPTO") (Reg. No. 1,449,383, registered July 28, 1987).

 

Respondent registered the <inamd2.com> and <inamd3.com> domain names in April and June of 2024, and uses them to resolve to a login prompt.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The Panel finds that Complainant has rights in the AMD mark through registration with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) ("Complainant's ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).").

 

Respondent's <inamd2.com> and <inamd3.com> domain names use Complainant's AMD mark and simply add "in", a number and the ".com" gTLD. These changes do not sufficiently distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant's entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy).  Therefore, the Panel finds that Respondent's <inamd2.com> and <inamd3.com> domain names are confusingly similar to Complainant's AMD mark.

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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 contends that Respondent lacks rights and legitimate interests in the <inamd2.com> and <inamd3.com> domain names as Respondent is not commonly known by the domain names and Complainant has not authorized or licensed to Respondent any rights in the AMD mark. The WHOIS information for the disputed domain names lists the registrant as "zhang an". Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent's use of the same); see also Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) ("lack of evidence in the record to indicate a respondent is authorized to use [the] complainant's mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)").

 

Complainant argues that Respondent also fails to use the <inamd2.com> and <inamd3.com> domain names for a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent is using them to redirect users to webpages with a login prompt. See Seiko Kabushiki Kaisha d/b/a Seiko Corporation v. CS into Tech., FA 198795 (Forum Dec. 6, 2006) (finding that diverting customers who looking for products relating to the famous SEIKO mark to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii)).  Complainant provides screenshots showing that Respondent uses the disputed domain names to direct users to a screen that states "please log in first", using Complainant's AMD mark and logo. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant contends that Respondent registered and uses the <inamd2.com> and <inamd3.com> domain names in bad faith to trade upon the goodwill associated with Complainant. The Panel agrees and finds bad faith attraction for commercial gain under Policy ¶ 4(b)(iv).  See Charter Communications Holding Company, LLC v. MIZHAR salem, FA 1774836 (Forum Apr. 4, 2018) (finding bad faith in registration of disputed domains because "[u]sing a disputed domain name to trade upon the goodwill of a complainant for commercial gain . . . can evidence bad faith under Policy ¶ 4(b)(iv)").

 

The Panel also finds that Respondent had knowledge of Complainant's rights in the AMD mark when it registered the disputed domain name. The Panel agrees, due to Complainant's use of the AMD mark for over 35 years and Respondent's use of the AMD mark and logo, and finds further bad faith under Policy ¶ 4(a)(iii). See Charter Commc'ns Holding Co. v. MIZHAR salem, FA 1774836 (Forum Apr. 4, 2018) (finding bad faith registration of the domain name <charterspectrumonline.com> because "[a]ctual knowledge of a complainant's mark prior to registering a confusingly similar domain name can evidence bad faith under Policy ¶ 4(a)(iii)").

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <inamd2.com> and <inamd3.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated: August 29, 2024