Microsoft Corporation v. wangwang game
Claim Number: FA0901001242363
Complainant is Microsoft
Corporation (“Complainant”), represented by Molly Buck Richard, of Richard Law Group, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <hotmaiil.com>, registered with Thedomainnamestore.ca.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On January 22, 2009, a Notification
of Complaint and Commencement of Administrative Proceeding (the
"Commencement Notification"), setting a deadline of February 11, 2009
by which Respondent could file a response to the Complaint, was transmitted to
Respondent via e-mail, post and fax, to all entities and persons listed on
Respondent's registration as technical, administrative and billing contacts,
and to postmaster@hotmaiil.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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." 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 makes the following assertions:
1. Respondent’s <hotmaiil.com> domain name is confusingly similar to Complainant’s HOTMAIL mark.
2. Respondent does not have any rights or legitimate interests in the <hotmaiil.com> domain name.
3. Respondent registered and used the <hotmaiil.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Microsoft Corporation, has manufactured,
marketed, and sold computer software and related products and services since
1975. Complainant has offered to the
public a free electronic e-mail service under the HOTMAIL mark since 1998, when
Complainant merged with the mark’s predecessor-in-interest. Complainant owns and operates the
<hotmail.com> domain name in connection with its operation, and owns
numerous trademark registrations for the HOTMAIL mark with the United States Patent
and Trademark Office (“USPTO”) (i.e. Reg. No. 2,165,601 issued
Respondent registered the disputed domain name on
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."
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.”).
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.
Complainant has submitted evidence of its trademark
registrations with the USPTO and other governmental trademark authorities
worldwide for its HOTMAIL mark. The
Panel therefore finds that Complainant has sufficient rights in the mark under
Policy ¶ 4(a)(i).
Respondent’s <hotmaiil.com> domain name
includes Complainant’s mark, while adding an additional “i” and the generic
top-level domain “.com.” Neither of
these alterations carries any meaningful distinction. 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).”); see also Trip
Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant has asserted that Respondent lacks rights and
legitimate interests in the disputed
domain name. Complainant must
successfully assert a sufficient prima
facie case supporting its allegations before Respondent receives the burden
of demonstrating its rights or legitimate interests. The Panel finds that Complainant has met its
burden, and therefore Respondent must demonstrate its rights or legitimate
interests under Policy ¶ 4(c). See
G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum
There is no evidence in the record, including the WHOIS
information, to conclude that Respondent is commonly known by the disputed
domain name. Moreover, Complainant
contends that Respondent is not a licensee of Complainant, and that Respondent
is not authorized to register or use the disputed domain name or the HOTMAIL
mark. Therefore, the Panel finds that
Respondent lacks rights and legitimate interests under Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652
(Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly
known by the disputed domain names where the WHOIS information, as well as all
other information in the record, gave no indication that the respondent was
commonly known by the disputed domain names, and the complainant had not
authorized the respondent to register a domain name containing its registered
mark); see also M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum
Respondent’s disputed domain name resolves to a website that features third-party advertisements for Complainant’s competitors or websites that feature information on Complainant’s services. The Panel infers that Respondent receives click-through fees from this activity. Therefore, the Panel finds that Respondent has failed to create 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). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); see also Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not 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)).
Respondent’s <hotmaiil.com> domain name
constitutes a typographical error in that an additional “i” has been
inserted. Registration of domain names
that intentionally misspell a trademark qualifies as typosquatting. See,
e.g., Microsoft Corp. v. Domain Registration
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent has engaged in bad faith
registration and use under Policy ¶ 4(b)(iii) by disrupting Complainant’s
business through the provision of competitive third-party advertisements on the
resolving website. See EBAY, Inc. v. MEOdesigns, D2000-1368
(WIPO
The Panel finds that Respondent has engaged in bad faith
registration and use under Policy ¶ 4(b)(iv) by intentionally creating a
likelihood of confusion for commercial gain as to Complainant’s affiliation
with Respondent’s confusingly similar disputed domain name and corresponding
website. 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); see also
Moreover,
Respondent’s aforementioned engagement in typosquatting is sufficient to
evidence Respondent’s bad faith registration and use under Policy ¶
4(a)(iii). See Dermalogica, Inc.
v. Domains to Develop, FA 175201 (Nat. Arb. Forum Sept. 22, 2003) (finding that the <dermatalogica.com>
domain name was a “simple misspelling” of the complainant's DERMALOGICA
mark which indicated typosquatting and bad faith pursuant to Policy 4 ¶
(a)(iii)); see also Zone Labs, Inc.
v. Zuccarini, FA 190613 (Nat. Arb.
Forum
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <hotmaiil.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: March 2, 2009
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