Plaintiff Virtual Compute Corporation (VCC), a computer services company, filed a complaint on Tuesday in the Southern District of Texas against NVIDIA Corporation, a computer hardware company that designs graphics processing units, for trademark infringement. NVIDIA is accused of infringing VCC’s vCompute trademark, its common law trademark rights for its vCompute, and Virtual Compute marks.
According to the complaint, VCC began using the vCompute mark as early as 2003 in interstate commerce in connection with its computer services. VCC claimed that its use of the “vCompute Mark predates the date of NVIDIA’s first use or any date of first use that NVIDIA may properly allege.” VCC filed to register the vCompute mark with the U.S. Patent and Trademark Office in January 2011, and it was registered in September of that year. Furthermore, VCC asserted that it “invested substantial resources towards the protection of the vCompute mark” and protecting goodwill. VCC proffered that an internet search for “vcompute” “shows that the first link to appear on the page is for Defendant’s website and read ‘vCompute Server NVIDIA.’” Meanwhile, the second link was for VCC’s website. VCC stated that it notified NVIDIA about its alleged infringement.
Moreover, according to VCC, the “potential for confusion” between VCC’s use and NVIDIA’s use of the mark “was great because (1) the mark NIVDIA used was identical in terms of appearance, sound, and commercial impression (both marks use the small “v” prefix to compute) to the true vCompute Mark; (2) the services NVIDIA was advertising with the mark were the same or similar to those offered by VCC; and (3) NVIDIA’s services were advertised in the same channels of trade and would be of interest to the same customers as VCC’s services.”
The complaint noted that in “recognizing VCC’s superior rights in the vCompute Mark, (NVIDIA) agreed to change the name of its product” to “Virtual Compute Server (vCS) NVIDIA.” However, VCC asserted that even the new name was confusingly similar to VCC’s company name. VCC said it has common-law trademark rights to its name.
VCC alleged that its revenue has decreased as a result of this infringement. VCC also stated both advertise their services through the internet, however, since NVIDIA is larger and is “entering the same market for the same service using VCC’s trademarks, VCC has seen demand for its products sharply fall,” as VCC asserted it had “relied on Google searches for new clients.” VCC also claimed that the defendant is now its competitor.
In sum, VCC claimed that NVIDIA’s infringement will cause confusion, reverse confusion, and/or mistake among purchasers, as well as cause injury to the plaintiff. The counts against NVIDIA are federal trademark infringement, common law trademark infringement, federal unfair competition, false representation, and false designation of origin, for the aforementioned conduct.
The plaintiffs have sought for the defendants to be permanently enjoined from using the marks or any other marks that are likely to cause confusion; for the destruction of all goods, advertising, literature, and other promotional materials with the marks; an award for damages; for the defendant to change its trade name to one that does not incorporate the “vCompute,” “Virtual Compute” or another confusingly similar name; to account for all gains and profits from the infringement; and an award for costs and fees.
VCC is represented by Benjamin Foster PLLC and The Simon Law Firm, P.C.
