Microsoft Corporation v. michal restl c/o Dynadot Privacy
Claim Number: FA1409001582219
Complainant is Microsoft Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is michal restl c/o Dynadot Privacy (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <microsorft.com>, registered with DYNADOT LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 29, 2014; the National Arbitration Forum received payment on September 29, 2014.
On September 29, 2014, DYNADOT LLC confirmed by e-mail to the National Arbitration Forum that the <microsorft.com> domain name is registered with DYNADOT LLC and that Respondent is the current registrant of the name. DYNADOT LLC has verified that Respondent is bound by the DYNADOT LLC 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 October 1, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 21, 2014 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@microsorft.com. Also on October 1, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 28, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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
1. Respondent’s <microsorft.com> domain name is confusingly similar to Complainant’s MICROSOFT mark.
2. Respondent does not have any rights or legitimate interests in the <microsorft.com> domain name.
3. Respondent registered and uses the <microsorft.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has used the MICROSOFT mark since 1975 in connection with computer software. The mark has been registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 1,200,236, registered July 6, 1982).
Respondent registered the <microsorft.com> domain name on September 4, 2009, and uses it to divert Internet users to various websites, some of which offer products in competition 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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
This Panel finds that Complainant’s registration of its MICROSOFT mark with the USPTO establishes Policy ¶ 4(a)(i) rights in the mark. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
Respondent’s <microsorft.com> domain name simply adds the letter “r” and the gTLD “.com” to Complainant’s MICROSOFT mark. These changes do not distinguish the domain name in a meaningful way. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (“The mere addition of a single letter to the complainant’s mark does not remove the respondent’s domain names from the realm of confusing similarity in relation to the complainant’s mark pursuant to Policy ¶ 4(a)(i).”). Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s MICROSOFT mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
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 Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent is not known by the <microsorft.com> domain name, and notes that the WHOIS identifies Respondent as “michal restl c/o Dynadot Privacy.” The Panel finds that there is nothing in the record that establishes that Respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant shows how Respondent uses the <microsorft.com> domain name to send Internet users to an array of websites ranging from DELL products pages to other third party offers. The Panel notes that the disputed domain name resolves to either the official DELL website, a website with dating and related hyperlinks, or a website that seeks to install software that “checks” Internet speed. The Panel finds that none of these uses constitute a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) because they divert Internet users away from official MICROSOFT goods to unrelated offers. See Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Complainant also argues that the single-character addition to the mark in forming the disputed domain name illustrates typosquatting by Respondent. Previous panels have held that capitalizing on a common misspelling of a complainant’s domain name was tantamount to typosquatting—the practice of registering domain names for their value as being similar to a correctly spelled trademark. See, e.g., Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). Thus, the Panel finds that Respondent’s typosquatting is further evidence that Respondent lacks rights in the disputed domain name.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent has had adverse UDRP decisions against him in the past. See Jessica London, Inc. v. Michal Restl, FA 1371109 (Nat. Arb. Forum, Mar. 11, 2011); Allstate Insurance Company v. Michal Restl, FA 1375161(Nat. Arb. Forum, Apr. 8, 2011); State Farm Mutual Automobile Insurance Company v. Michal Restl c/o Dynadot Privacy, FA 1380956 (Nat. Arb. Forum, April 29, 2011); Time Warner Cable, Inc. v. Michal Restl c/o Dynadot Privacy, FA 1484030 (Nat. Arb. Forum, March 25, 2013); Time Warner Cable, Inc. v. Michal Restl c/o Dynadot Privacy, FA 1484030 (Nat. Arb. Forum, June 14, 2013); Discover Financial Services v. michal restl c/o Dynadot Privacy, FA 1534599 (Nat. Arb. Forum, Jan. 24, 2014); The Toronto-Dominion Bank v. michal restl c/o Dynadot Privacy, FA 1554490 (Nat. Arb. Forum, May 27, 2014). The Panel therefore concludes that Respondent has engaged in a pattern of bad faith registration under Policy ¶ 4(b)(ii). See Arai Helmet Americas, Inc. v. Goldmark, D2004-1028 (WIPO Jan. 22, 2005) (finding that “Respondent has registered the disputed domain name, <aria.com>, to prevent Complainant from registering it” and taking notice of another UDRP proceeding against the respondent to find that “this is part of a pattern of such registrations”).
Complainant further argues that Respondent is profiting off the likelihood Internet users will be confused as to Respondent’s association with Complainant in offering the various promotions through the disputed domain name’s resolving webpages. This Panel agrees that using a confusingly similar domain name to send Internet users to different websites indicates a bad faith intent to profit off the likelihood Internet users will view MICROSOFT and Complainant as the source of this content. See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). Therefore, the Panel finds Policy ¶ 4(b)(iv).
Respondent is seeking to capitalize on a common spelling error that Internet users make by including an extra letter “r” when trying to find Complainant at <microsoft.com>. This is evidence of Policy ¶ 4(a)(iii) bad faith. See Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005) (“Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of the [complainant’s] IMDB mark.).
The Panel finds that Complainant has satisfied 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 <microsorft.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: November 4, 2014
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