Micros Systems, Inc. v. Domain Admin / China Capital Investment Limited
Claim Number: FA1703001722961
Complainant is Micros Systems, Inc. (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, USA. Respondent is Domain Admin / China Capital Investment Limited (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <micros911.com>,(‘the Domain Name’ registered with Top Tier Domains 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.
Dawn Osborne of Palmer Biggs IP as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 21, 2017; the Forum received payment on March 21, 2017.
On March 22, 2017, Top Tier Domains LLC confirmed by e-mail to the Forum that the <micros911.com> domain name is registered with Top Tier Domains LLC and that Respondent is the current registrant of the name. Top Tier Domains LLC has verified that Respondent is bound by the Top Tier Domains 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 March 27, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 17, 2017 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@micros911.com. Also on March 27, 2017, 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 April 24, 2017 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs IP 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’s contentions can be summarized as follows:
Founded in 1977 Complainant owns several trade marks worldwide for MICROS including in the USA for service and information guides relating to software, hardware, hospitality and/or retail. It owns the web site at www.micros.com. MICROS is recognized across the world in the restaurant and hospitality industry.
The Domain Name was registered in 2016 without Complainant’s authorization. Respondent has never been associated with Complainant and Complainant has never authorized Respondent to use the MICROS mark in any form. Respondent is not known by the Domain Name and has no trade mark rights in MICROS or MICROS 911.
The Domain Name has been used for third party commercial purposes including for advertisement of one of Complainant’s competitors. It also is being used to distribute malware.
The Domain Name is confusingly similar to Complainant’s MICROS mark incorporating it in its entirety. Multiple panels have found that the addition of the term ‘911’, a term associated with seeking help or assistance, is insignificant to differentiate the Domain Name from Complainant’s mark. The addition of a generic top level domain like .com is irrelevant for purposes of ascertaining confusing similarity.
Respondent’s actions are not a bona fide offering of goods and services nor is Respondent engaged in a legitimate non commercial or fair use of the Domain Name. When Domain Name does not redirect to malware and competing or commercial web sites it is parked and failure to make active is not bona fide use.
Using a Domain Name for malware is use and bad faith registration of a Domain Name. Use for commercial pay per click links, including competing links, is bad faith registration and use
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns several trade marks worldwide for MICROS, including in the USA, for service and information guides relating to software, hardware, hospitality and/or retail, with first use recorded as 1977.
The Domain Name registered in 2016 has been used for pay per click links including those related to competitors of Complainant, for malware sites and as a parked page.
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 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 (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.”).
Identical or Confusingly Similar
The Domain Name consists of Complainant's MICROS mark (which is registered in USA for publications with first use in commerce recorded as 1977), the generic term ‘911’ often interpreted as meaning a place from where help can be obtained, and the gTLD .com. Previous panels have found confusing similarity when a respondent merely adds a generic term to a Complainant's mark. See Bloomberg Finance LP v network admin, FA 1622138 (Forum July 11, 2015) (‘The addition, deletion and switching of numbers on Domain names does not remove respondent’s domain names from the realm of confusing similarity in relation to Complainant’s mark pursuant to Policy 4 (a)(i). The Panel agrees that the addition of the generic term ‘911’ does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy. See, by analogy, Inter Ikea Systems BV v Daniel Woodson, D2011-1933 (WIPO Jan 18, 2012)(where it was held that Internet users are likely to surmise that the Domain Name using a trade mark and generic word indicates a site belonging to or authorised by the Complainant where the Complainant might offer a service).
The gTLD .com does not serve to distinguish the Domain Name from the MICROS mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose to a mark in which Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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).
Complainant has not licensed Respondent to use its MICROS mark.
Complainant has provided evidence that the Domain Name has been pointed to links to third party commercial sites including a site distributing malware.
Previous panels have held that use of a domain name to distribute malicious computer software does not establish any rights or legitimate interests in the domain name. See Ceridian Corp v Versata Software Inc., FA 1259927 (Forum June 23, 2009)(finding that a respondent’s use of a domain name to direct Internet users to a website which attempts to download computer viruses failed to create any semblance of bona fide offering of goods and services under Policy 4 (c ) (i) or a legitimate non commercial or fair use pursuant to Policy 4 (c ) (iii)).
Nor does posting to links to third parties show rights or legitimate interests. See Priceline.com LLC v levesque, bruno, FA 1506 001625137 (Forum July 29, 2015)(‘The Panel finds that the Respondent’s attempt to divert Internet users who are looking for products relating to Complainant’s famous mark to a web site unrelated to the mark does not engage in a bona fide offering of goods or services under Policy 4 (c ) (i), nor does it make a legitimate non commercial or fair use under Policy 4 (c ) (iii).
Accordingly the Panellist finds that Respondent does not have any rights or legitimate interests in the Domain Name.
Domain Names which attempt to download malware have been found to justify a finding of bad faith. See Twitter, Inc. v Kiribati Media/Kiribati 200 Media Limited, FA 1502001603444 (Forum Mar 19, 2015) (‘Using the disputed Spain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy 4 (a) (iii). The nature of the commercial links to which the Domain Name pointed suggested the Respondent knew about the Complainant and its business.)
As such, the Panel believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii). There is therefore no need to consider additional grounds of bad faith put forward by Complainant.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <micros911.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: April 26, 2017
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