Microsoft
Corporation v. MeiXun Technology Ltd.
Claim Number: FA0906001271176
Complainant is Microsoft
Corporation (“Complainant”), represented by James F. Struthers, of Richard Law Group, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <psxbox.net>, registered with Beijing Innovative Linkage Technology Ltd. d/b/a Dns.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 29, 2009; the National Arbitration Forum received a hard copy of the Complaint on June 30, 2009. The Complaint was submitted in both Chinese and English.
On July 3, 2009, Beijing Innovative Linkage Technology Ltd. d/b/a Dns confirmed by e-mail to the National Arbitration Forum that the <psxbox.net> domain name is registered with Beijing Innovative Linkage Technology Ltd. d/b/a Dns and that Respondent is the current registrant of the name. Beijing Innovative Linkage Technology Ltd. d/b/a Dns has verified that Respondent is bound by the Beijing Innovative Linkage Technology Ltd. d/b/a Dns registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On July 9, 2009, a Chinese language Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 29, 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@psxbox.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 3, 2009, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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." 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.
Pursuant to Rule 11(a) the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <psxbox.net> domain name is confusingly similar to Complainant’s XBOX mark.
2. Respondent does not have any rights or legitimate interests in the <psxbox.net> domain name.
3. Respondent registered and used the <psxbox.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Microsoft Corporation, manufactures, markets, and sells computer software and related products and services. Complainant launched a video game entertainment system called XBOX in 2001. Complainant owns a variety of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for its XBOX mark (i.e., Reg. No. 2,775,859 issued October 21, 2003) and the Chinese governmental trademark authority (Reg. No. 1,698,267 issued January 14, 2002).
Respondent registered the <psxbox.net> domain name on July 10, 2005. The disputed domain name resolves to Respondent’s commercial website that sells unauthorized third-party modification chips for Complainant’s XBOX and other competing gaming consoles.
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
asserts rights in its XBOX mark through its registration of the mark with the
USPTO and the Chinese governmental trademark authority. The Panel finds
that each of Complainant’s trademark registration are sufficient to establish
rights under Policy ¶ 4(a)(i). See ESPN, Inc. v.
MySportCenter.com, FA 95326 (Nat. Arb. Forum Sept. 5,
2000) (concluding that the complainant demonstrated its rights in the
SPORTSCENTER mark through its valid trademark registrations with the USPTO and
similar offices around the world); see
also
Complainant contends that Respondent’s <psxbox.net>
domain name is confusingly similar to Complainant’s XBOX
mark under Policy ¶ 4(a)(i). The disputed domain name incorporates
Complainant’s XBOX mark in its entirety with the only alterations being the
addition of the letters “ps” and the addition of the generic top-level domain
“.net.” Complainant asserts that the
letters “ps” refer to an abbreviation for Play Station, a competing game
console. The Panel finds that
Respondent’s use of Complainant’s XBOX mark, merged with the letters “ps” does
nothing to negate confusing similarity between Complainant’s XBOX mark and
Respondent’s <psxbox.net> domain name pursuant to Policy ¶
4(a)(i). Given the fact that the letters
“ps” and the XBOX mark are both readily associated with gaming platforms, the
merging of the two terms to comprise the disputed domain name merely
exacerbates confusion. Additionally, the
Panel finds that the affixation of the generic top-level domain “.net” is
inconsequential for the purposes of a Policy ¶ 4(a)(i)
analysis. Therefore, the Panel finds
that Respondent’s <psxbox.net> domain name is confusingly similar
to Complainant’s XBOX mark under Policy ¶ 4(a)(i). See G.D.
Searle & Co. v. Entm’t Hosting Services, Inc., FA 110783 (Nat. Arb. Forum June 3, 2002) (“[t]he
Panel concludes that the
<viagra-propecia-xenical-celebrex-claritin-prescriptions.com> domain name
is confusingly similar to Complainant’s CELEBREX mark because the mere addition
of related competing products’ names in the domain name does not defeat a
confusing similarity claim”); see also G.D.
Searle & Co. v. Christensen, FA 100647
(Nat. Arb. Forum Dec. 4, 2001) (finding <celebrexclaritinpharmacy.com> to
be confusingly similar to Complainant’s CELEBREX mark); see also Katadyn N.
Am. v.
Complainant has satisfied Policy ¶ 4(a)(i).
Complainant has alleged that Respondent does not have any rights or legitimate interests in the <psxbox.net> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). The Panel finds Complainant has made a sufficient prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the disputed domain name. However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c). See Document Techs., Inc. v. Int’l Elec. Commc’ns Inc., D2000-0270 (WIPO June 6, 2000) (“Although Paragraph 4(a) of the Policy requires that the Complainant prove the presence of this element (along with the other two), once a Complainant makes out a prima facie showing, the burden of production on this factor shifts to the Respondent to rebut the showing by providing concrete evidence that it has rights to or legitimate interests in the Domain Name.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint).
Respondent uses the <psxbox.net> domain name to resolve to Respondent’s commercial website that sells third-party modification chips for Complainant’s XBOX and other competing gaming platforms. The Panel concludes that Respondent is undoubtedly profiting through the sale of game console parts. Thus, the Panel finds that Respondent has not used the <psxbox.net> domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See DaimlerChrysler AG v. Autoparts Web Solutions, FA 676663 (Nat. Arb. Forum May 25, 2006) (finding that the respondent’s use of the <mercedes-parts-online.com> domain name to offer parts for the complainant’s automobiles, as well as those of other automobile manufacturers, is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Nike, Inc. v. Dias, FA 135016 (Nat. Arb. Forum Jan. 7, 2002) (finding no bona fide offering of goods or services where the respondent used the complainant’s mark without authorization to attract Internet users to its website, which offered both the complainant’s products and those of the complainant’s competitors).
Moreover, Complainant contends that Respondent is not
commonly known by the <psxbox.net> domain name under Policy ¶ 4(c)(ii). The pertinent
WHOIS information identifies the registrant as “MeiXun Technology Ltd.
GuangZhou.” This information suggests
that Respondent is not commonly known by the disputed domain name and there is
no information in the record to suggest otherwise. Thus, the Panel finds that Respondent is not
commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Reese
v. Morgan, FA 917029 (Nat. Arb.
Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by
the <lilpunk.com> domain name as there was no evidence in the record
showing that the respondent was commonly known by that domain name, including
the WHOIS information as well as the complainant’s assertion that it did not
authorize or license the respondent’s use of its mark in a domain name); see also Wells
Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the
WHOIS contact information for the disputed domain [name], one can infer that
Respondent, Onlyne Corporate Services11, is not commonly known by the name
‘welsfargo’ in any derivation.”).
Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant
alleges that Respondent is engaged in bad faith registration and use of the
disputed domain name pursuant to Policy ¶ 4(b)(iii).
The Panel finds that Respondent’s use of a domain name confusingly similar to
Complainant’s mark, which resolves to a commercial website offering game
console accessories for Complainant’s products and those of Complainant’s
competitors, likely disrupts Complainant’s business. Therefore, the Panel
concludes that Respondent has engaged in bad faith registration and use of the
disputed domain name pursuant to Policy ¶ 4(b)(iii).
See Marriott
Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel agency and thus
operates in the same business as the Complainant. The parties can therefore
be considered as competitors. The Panel thus finds that the Respondent
registered the domain name primarily for the purpose of disrupting the business
of a competitor, which constitutes evidence of registration and use in bad
faith under Policy 4(b)(iii).”); see also
DatingDirect.com Ltd. v. Aston, FA 593977 (Nat.
Arb. Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to
divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of
bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”).
Bad faith registration and use of the contested domain name under Policy ¶ 4(b)(iv) can also be inferred because Respondent is intentionally attempting to attract Internet users, for financial gain, to its domain name by creating a likelihood of confusion with Complainant and its XBOX mark. Respondent profits from this confusion by selling game console parts that compete with Complainant. The Panel concludes that Respondent has engaged in bad faith registration and use of the <psxbox.net> domain name under Policy ¶ 4(b)(iv). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (finding that the respondent’s use of the <saflock.com> domain name to offer goods competing with the complainant’s illustrates the respondent’s bad faith registration and use of the domain name, evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv)); see also Identigene, Inc. v. Genetest Labs., D2000-1100 (WIPO Nov. 30, 2000) (finding bad faith where the respondent's use of the domain name at issue to resolve to a website where similar services are offered to Internet users is likely to confuse the user into believing that the complainant is the source of or is sponsoring the services offered at the site).
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 <psxbox.net> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: August 12, 2009
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