Microsoft Corporation v. BETRAND TUCKER
Claim Number: FA1601001658489
Complainant is Microsoft Corporation ("Complainant"), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is BETRAND TUCKER ("Respondent"), Switzerland.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xboxliveanniversary.com>, registered with eNom, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 28, 2016; the Forum received payment on January 28, 2016.
On January 29, 2016, eNom, Inc. confirmed by email to the Forum that the <xboxliveanniversary.com> domain name is registered with eNom, Inc. and that Respondent is the current registrant of the name. eNom, Inc. has verified that Respondent is bound by the eNom, 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 February 1, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 22, 2016 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@xboxliveanniversary.com. Also on February 1, 2016, 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 Forum transmitted to the parties a Notification of Respondent Default.
On February 25, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 launched the XBOX video game entertainment system in 2001, and the following year launched XBOX LIVE, which allows consumers to play XBOX games against other online players. Complainant has sold more than 80 million XBOX 360 consoles and has more than 48 million XBOX LIVE members in over 41 countries. Complainant uses the XBOX and XBOX LIVE marks in connection with these goods and services, and has registered these marks in the United States, the European Union, and other jurisdictions. Complainant claims that the marks have become famous.
Complainant contends that the disputed domain name <xboxliveanniversary.com> is confusingly similar to its XBOX and XBOX LIVE marks; that Respondent has no rights or legitimate interests in the domain name; and that the domain name was registered and is being used in bad faith. In support thereof, Complainant states that the disputed domain name was registered through a privacy registration service in February 2015. The privacy shield was removed when this proceeding was initiated, and the registrant address currently reflected in the registration data is in Lancaster, Manchester, Switzerland, which apparently is a nonexistent location. The domain name resolves to a landing page that includes Complainant's trademarks, logos, and trade dress, along with a copyright notice reading "© 2015 Microsoft." The page appears to be soliciting visitors to share a link to it with friends in order to increase traffic.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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 (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 disputed domain name corresponds to Complainant's registered mark XBOX LIVE, omitting the space and appending the generic term "anniversary" and the ".com" top-level domain. These alterations do not diminish the similarity between the domain name and Complainant's mark. See, e.g., Microsoft Corp. v. PRQ Inet KB / Gottfrid Swartholm, FA 1450976 (Nat. Arb. Forum Aug. 13, 2012) (finding <xboxliverewards.com> confusingly similar to XBOX LIVE); H-D Michigan, Inc. v. Chad Morris, FA 137094 (Nat. Arb. Forum Jan. 29, 2003) (finding <harleyanniversary.com> confusingly similar to HARLEY). The Panel finds that the disputed domain name is confusingly similar to Complainant's mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization. It was registered through a privacy service (and with false contact information) in order to conceal the registrant's identity, and apparently its sole use has been in connection with a commercial website that uses Complainant's marks, logos, and trade dress in a misleading manner. See, e.g., Kmart of Mich., Inc. v. Cone, FA 655014 (Nat. Arb. Forum Apr. 25, 2006) (finding lack of rights or legitimate interests where respondent used domain name in attempt to pass itself off as complainant). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent's registration of a domain name obviously intended to create confusion with Complainant, together its use of that domain name for a website containing Complainant's marks, logos, and trade dress, in an apparent attempt to sell pass itself as Complainant, is indicative of bad faith under these provisions of the Policy. See, e.g., America Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002) (finding bad faith under similar circumstances). Respondent's attempt to shield his identity through the use of a privacy service and false contact information, although not itself a conclusive indicator of bad faith, lends further support to this conclusion. See, e.g., Monster Energy Co. v. Timothy Davis, FA 1654480 (Forum Feb. 3, 2016). Accordingly, the Panel finds that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <xboxliveanniversary.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 25, 2016
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