Microsoft Corporation v. ideabat Co,. Ltd
Claim Number: FA1012001364941
Complainant is Microsoft Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is ideabat Co,. Ltd (“Respondent”), Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <microkinect.com>, registered with Netfirms, Inc.
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.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 23, 2010; the National Arbitration Forum received payment on December 23, 2010.
On December 27, 2010, Netfirms, Inc. confirmed by e-mail to the National Arbitration Forum that the <microkinect.com> domain name is registered with Netfirms, Inc. and that Respondent is the current registrant of the name. Netfirms, Inc. has verified that Respondent is bound by the Netfirms, Inc. 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 December 30, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 19, 2011 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@microkinect.com. Also on December 30, 2010, the Written Notice of the Complaint, notifying Respondent of the email 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 January 26, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Paul A. Dorf (Ret.) 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 makes the following assertions:
1. Respondent’s <microkinect.com> domain name is confusingly similar to Complainant’s MICROSOFT and KINECT marks.
2. Respondent does not have any rights or legitimate interests in the <microkinect.com> domain name.
3. Respondent registered and used the <microkinect.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Microsoft Corp., is a global provider of software, computer, and gaming goods and services. Complainant has been in business since at least 1975. Complainant owns multiple trademark registrations with the United States Patent and Trademark Office ("USPTO") for its MICROSOFT mark (e.g., Reg. No. 1,200,236 issued July 6, 1982). Further, Complainant owns a trademark registration with the Hong Kong Trade Marks Registry (“HKTMR”) for its KINECT mark (Reg. No. 301599599 issued April 28, 2010).
Respondent, ideabat Co,. Ltd, registered the <microkinect.com> domain name on June 15, 2010. Respondent’s disputed domain name resolves to a website that displays information about Complainant’s products and is offering the disputed domain name for sale stating, “Are you interest in this domain? It is for sale now. The current offer is US$170. Contact us:sd@ideabat.com.”
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 to show that it owns trademark registrations with the USPTO for its MICROSOFT mark (e.g., Reg. No. 1,200,236 issued July 6, 1982) and with the HKTMR for its KINECT mark (Reg. No. 301599599 issued April 28, 2010). The Panel finds that such registrations with national trademark authorities is sufficient for Complainant to establish rights in the MICROSOFT and KINECT marks under Policy ¶ 4(a)(i). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (finding that the complainant’s federal trademark registrations for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant argues that the <microkinect.com> domain name is confusingly similar to its MICROSOFT and KINECT marks under Policy ¶ 4(a)(i). Complainant contends that the domain name contains an abbreviated version of its MICROSOFT mark coupled with its entire KINECT mark while adding the generic top-level domain (“gTLD”) “.com.” Complainant argues that such modifications and additions to its marks are not sufficient to distinguish the domain name from Complainant’s marks. The Panel agrees and finds that Respondent’s disputed domain name is confusingly similar to Complainant’s marks under Policy ¶ 4(a)(i). See Microsoft Corp. v. Montrose Corp., D2000-1568 (WIPO Jan. 25, 2001) (finding the domain name <ms-office-2000.com> to be confusingly similar even though the mark MICROSOFT is abbreviated); see also Nintendo of Am. Inc. v. Pokemon, D2000-1230 (WIPO Nov. 23, 2000) (finding confusing similarity where respondent combined the complainant’s POKEMON and PIKACHU marks to form the <pokemonpikachu.com> domain name); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant alleges that Respondent does not have any rights and legitimate interests in the <microkinect.com> domain name. Complainant is required to make a prima facie case in support of these allegations. Once Complainant has produced a prima facie case the burden of proof shifts to Respondent to show that it possesses rights or legitimate interests in the disputed domain name. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”). The Panel finds that Complainant has produced a prima facie case. Due to Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not have any rights or legitimate interests in the <microkinect.com> domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond). The Panel, however, will examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Complaint argues that Respondent is neither commonly known by the <microkinect.com> domain name, nor has Complainant given Respondent permission to use Complainant’s mark. The WHOIS information identifies “ideabat Co,.Ltd” as the registrant of the <microkinect.com> domain name, and there is no further evidence on record that Respondent is commonly known by the disputed domain name. The Panel finds that without evidence of Respondent being commonly known by the disputed domain name, Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name); see also 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).
Complainant contends that Respondent is using the disputed domain name for commercial gain by offering the domain name for sale to Internet users who visit the website resolving from the domain name. Complainant submits screen shot evidence to show that Respondent’s website states “Are you interest in this domain? It is for sale now. The current offer is US$170. Contact us:sd@ideabat.com,” while displaying Complainant’s marks and information about Complainant’s products. Complainant argues that Respondent’s use of the domain name as an attempt to profit from its sale is evidence that Respondent lacks rights and legitimate interests in the domain name. The Panel agrees and finds that Respondent’s use of the disputed domain name as detailed above is evidence that Respondent lacks rights and legitimate interests in the name under Policy ¶ 4(a)(ii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (“UDRP precedent is clear that auctioning domains does not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use of domains.”); see also Mothers Against Drunk Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) (holding that under the circumstances, the respondent’s apparent willingness to dispose of its rights in the disputed domain name suggested that it lacked rights or legitimate interests in the domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant has shown that Respondent registered and is using the disputed domain name in an attempt to sell the name to any Internet user that makes an offer above the amount listed on the website. Complainant argues that such use is evidence that Respondent registered and is using the disputed domain name in bad faith. The Panel agrees and finds that Respondent’s attempt to sell the disputed domain name to the highest bidder is proof that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name registration for sale establishes that the domain name was registered in bad faith under Policy ¶ 4(b)(i).”); see also Am. Online, Inc. v. Avrasya Yayincilik Danismanlik Ltd., FA 93679 (Nat. Arb. Forum Mar. 16, 2000) (finding bad faith where the respondent offered domain names for sale).
Further, Complainant contends that Respondent registered the disputed domain name within two days of its official product launch under the KINECT mark, and that such registration constitutes opportunistic bad faith. Complainant notes that Respondent registered the disputed domain name just days after the official launch of its product line under the KINECT mark following widespread press coverage of the launch. The Panel finds that Respondent’s registration of the disputed domain name within days of Complainant’s official launch of its product line is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Sota v. Waldron, D2001-0351 (WIPO June 18, 2001) (finding that the respondent’s registration of the <seveballesterostrophy.com> domain name at the time of the announcement of the Seve Ballesteros Trophy golf tournament “strongly indicates an opportunistic registration”); see also Pavillion Agency, Inc. v. Greenhouse Agency Ltd., D2000-1221 (WIPO Dec. 4, 2000) (finding that the “domain names are so obviously connected with the Complainants that the use or registration by anyone other than Complainants suggests ‘opportunistic bad faith’”).
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 <microkinect.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A. Dorf (Ret.), Panelist
Dated: February 8, 2011
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