Microsoft Corporation v. Lang Qing
Claim Number: FA1206001447828
Complainant is Microsoft Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Lang Qing (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <microsoftcloudaccelerator.com>, registered with Domain.com.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 8, 2012; the National Arbitration Forum received payment on June 8, 2012.
On June 8, 2012, Domain.com confirmed by e-mail to the National Arbitration Forum that the <microsoftcloudaccelerator.com> domain name is registered with Domain.com and that Respondent is the current registrant of the name. Domain.com has verified that Respondent is bound by the Domain.com 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 June 8, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 28, 2012 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@microsoftcloudaccelerator.com. Also on June 8, 2012, 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 July 5, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant first began using the MICROSOFT mark in 1975 and has continuously used the MICROSOFT mark since that time in connection with software and related goods and services.
Complainant owns trademark registrations with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 1,200,236 registered July 6, 1982) and with China’s State Administration for Industry and Commerce (“SAIC”) (Reg. No. 621,787 registered December 10, 1992).
Respondent’s <microsoftcloudaccelerator.com> domain name is confusingly similar to Complainant’s MICROSOFT mark because the disputed domain name contains a combination of Complainant’s mark with descriptive or generic terms and the generic top-level domain (“gTLD”) “.com.”
Respondent is not commonly known by the <microsoftcloudaccelerator.com> domain name because the WHOIS information identifies the registrant of the disputed domain name as “Lang Qing” and Complainant did not authorize Respondent to use the MICROSOFT mark.
Respondent’s <microsoftcloudaccelerator.com> domain name resolves to an inactive website that does not contain any content which is not a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent’s failure to make an active use of the <microsoftcloudaccelerator.com> domain name is evidence of bad faith registration and use.
Respondent opportunistically registered the <microsoftcloudaccelerator.com> domain name on the day Complainant released news about Complainant’s second accelerator program for cloud related startup companies, which is further evidence of bad faith registration and use.
Respondent registered the <microsoftcloudaccelerator.com> domain name with knowledge of Complainant’s MICROSOFT mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complaint owns registered trademarks for MICROSOFT in the United States, China and elsewhere.
MICROSOFT is a famous trademark.
Respondent is not affiliated with Complainant and had not been authorized to use the MICROSOFT mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in MICROSOFT. The domain name was registered proximate in time to when Complainant made a news announcement related to “cloud acceleration.”
The <microsoftcloudaccelerator.com> resolves to a blank parking page and does not support any content or online function.
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.”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant uses the MICROSOFT mark in connection with software and related goods and services. Complainant owns trademark registrations for MICROSOFT with the USPTO (Reg. No. 1,200,236 registered July 6, 1982) and with SAIC (Reg. No. 621,787 registered December 10, 1992), as well as with numerous other registries worldwide. Complainant’s trademark registration with either of the aforementioned recognized trademark authorities conclusively demonstrates Complainant’s rights in the MICROSOFT mark under Policy ¶ 4(a)(i). See Digi-Key Corp. v. Bei jing ju zhong cheng dian zi ji shu you xian gong si, FA 1213758 (Nat. Arb. Forum Oct. 1, 2008) (“The Panel finds these registrations [with the USPTO and SAIC] sufficiently establish Complainant’s rights in its DIGI-KEY mark pursuant to Policy ¶ 4(a)(i).”).
The <microsoftcloudaccelerator.com> contains Complainant’s entire trademark with the descriptive term, “cloud accelerator,” and the top level domain name, “.com,” concatenated thereto. Adding descriptive terms and a top level domain name to Complainant’s famous mark fails to distinguish the at‑issue domain name from the mark for the purposes of Policy ¶ 4(a)(i). See Am. Online, Inc. v. Shanghaihangwei Packing Material Co. Ltd., D2001-0443 (WIPO May 22, 2001) (finding the <ouricq.com> domain name to be confusingly similar to the complainant’s ICQ mark); see also Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). Therefore, the Panel concludes that Respondent’s <microsoftcloudaccelerator.com> domain name is confusingly similar to Complainant’s MICROSOFT mark.
Respondent lacks rights and legitimate interests in respect of the <microsoftcloudaccelerator.com> domain name.
Under Policy ¶ 4(a)(ii) Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of the at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
WHOIS information identifies the registrant of the at‑issue domain name as “Lang Qing” and there is no evidence on the record which tends to prove that Respondent is commonly known by the at‑issue domain name. Furthermore, Complainant did not authorize or license Respondent to use the MICROSOFT mark and Respondent failed to respond to Complainant’s allegations. Given the foregoing, the Panel concludes that Respondent is not commonly known by the <microsoftcloudaccelerator.com> domain name 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).
Respondent’s <microsoftcloudaccelerator.com> domain name resolves to a blank parking page that, of course, does not contain any content. Respondent’s failure to make an active use of the disputed domain name, without any justification or explanation, is not a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Pirelli & C. S.p.A. v. Tabriz, FA 921798 (Apr. 12, 2007) (finding that the respondent lacked rights or legitimate interests in a confusingly similar domain name that it had not made demonstrable preparations to use since its registration seven months prior to the complaint).
In light of Complainant’s uncontroverted evidence, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and interests in respect of the at-issue domain name pursuant to Policy ¶4(a)(ii).
Respondent registered and uses the at-issue domain names in bad faith.
The indicia of bad faith registration and use set out in Policy ¶ 4(b) are not exhaustive. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also CBS Broad., Inc. v. LA-Twilight-Zone, D2000-0397 (WIPO June 19, 2000) (“[T]he Policy expressly recognizes that other circumstances can be evidence that a domain name was registered and is being used in bad faith”). Here, Respondent’s failure to make an active use of the <microsoftcloudaccelerator.com> domain, or show such lack of use to be in good faith, urges that Respondent acted in bad faith. Without an overt good faith basis to register and use the confusingly similar domain name, there is a strong unrebutted implication that the domain name must have been registered to trade on Complainant’s famous mark thereby indicating bad faith registration and use of the at‑issue domain name under Policy ¶ 4(a)(iii). See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith).
Respondent registered the <microsoftcloudaccelerator.com> domain name on the day Complainant released news about Complainant’s second accelerator program for cloud related startup companies. This circumstance makes it clear that Respondent purposefully registered the disputed domain name to take advantage of Complainant’s news release. Respondent’s opportunistic registration of the disputed domain name is further evidence of bad faith registration and use. See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (“If there had been any doubt as to bad faith, the fact that registration was on the same day the news leaked about the merger, which was put in evidence, is a compelling indication of bad faith that [the] respondent has to refute and which he has failed to do. The panel finds a negative inference from this.”). Indeed, an identical circumstance has been previously found to suggest bad faith registration and use with regard to Complainant. See Microsoft Corp. v. Brian Fisher, FA 1436075 (Nat. Arb. Forum, May 4, 2012) (finding that Respondent registered the domain name within days of a press announcement relating to the product for which the domain name is based established bad faith under Policy ¶ 4(a)(iii)).
Finally, even without the temporal coincidence between the domain name’s registration and the Complainant’s related news, the MICROSOFT mark is so well renowned that is near impossible to imagine anyone using the Internet, such as Respondent, being unaware of Complainant and its famous trademark. The Panel thus finds that Respondent must have been aware of both Complainant and its MICROSOFT trademark at the time it registered the at‑issue domain name. Respondent’s actual knowledge of Complainant and its MICROSOFT trademark is further evidence of Respondent’s bad faith registration and use under Policy ¶4(a)(iii). See Radio & Records, Inc. v. Nat'l Voiceover, FA 665235 (Nat. Arb. Forum May 9, 2006) (finding that there are reasonable grounds to infer that Respondent had actual notice of Complainant's rights in the mark, and therefore registered the disputed domain name in bad faith, since Complainant's magazine covers an industry towards which Respondent's services are marketed).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microsoftcloudaccelerator.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 8, 2012
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page