美国国家仲裁院

裁决

Microsoft Corporation v. lin zong xing

申请案号FA1704001725147

当事人

投诉人为 Microsoft Corporation （以下简称“投诉人”）。被投诉人为 lin zong xing （中文：林宗兴）of Putian City, Fujian Province, China（以下简称“被投诉人”）。

注册机构和争议域名

有争议的域名是<azurenotebooks.com>, <hololensemulator.com>, <microsoftai.com>, <microsoftbaas.com>, <microsoftdownload.com>, <microsoftengage.com>, <microsoftgraph.com>, <microsoftinvoicing.com>, <microsoftmechanics.com>, <microsoftmeetings.com>, <microsoftminiac.com>, <microsoftplanner.com>, <microsoftpresence.com>, <microsoftsurfacedial.com>, <microsoftsurfacestudio.com>, <microsoftteam.com>, <microsoftteams.com>, <office365planner.com>, <visioonline.com>, <windowsiot.com>, <windowsvr.com>,它是在Ename Technology Co., Ltd.注册的。

陪审团

下面签名的人员保证，他独立公正行使陪审员的权利，并且他的知识与在本诉讼中担任陪审员无任何已知冲突。

David L. Kreider 为陪审团成员／专家组。

程序历史记录

投诉人于April 4, 2017向美国国家仲裁院提交了一份投诉书。根据新的《统一域名争议解决政策规则》（以下简称“规则”）和新的《仲裁院对统一域名争议解决政策的补充规则》（以下简称“补充规则”），通过在仲裁院网站上提交“选择使用”的形式，投诉人也选择完全以电子文件的形式呈递投诉书。

April 5 & 9, 2017, Ename Technology Co., Ltd. 通过发给国家仲裁院的电子邮件确认 <azurenotebooks.com>, <hololensemulator.com>, <microsoftai.com>, <microsoftbaas.com>, <microsoftdownload.com>, <microsoftengage.com>, <microsoftgraph.com>, <microsoftinvoicing.com>, <microsoftmechanics.com>, <microsoftmeetings.com>, <microsoftminiac.com>, <microsoftplanner.com>, <microsoftpresence.com>, <microsoftsurfacedial.com>, <microsoftsurfacestudio.com>, <microsoftteam.com>, <microsoftteams.com>, <office365planner.com>, <visioonline.com>, <windowsiot.com>, <windowsvr.com> 域名系在注册，并且被投诉人是目前域名的注册人。Ename Technology Co., Ltd.已经核实被投诉人受Ename Technology Co., Ltd.注册合同约束，因此同意解决任何第三方根据 ICANN 的《统一域名争议解决政策》（以下简称“政策”）提起的域名争议。

仲裁院于April 12, 2017通过电子邮件向所有涉案对象和被投诉人域名注册资料中记载的技术联系人、管理联系人和缴费联系人等人员和postmaster@azurenotebooks.com, postmaster@hololensemulator.com, postmaster@microsoftai.com, postmaster@microsoftbaas.com, postmaster@microsoftdownload.com, postmaster@microsoftengage.com, postmaster@microsoftgraph.com, postmaster@microsoftinvoicing.com, postmaster@microsoftmechanics.com, postmaster@microsoftmeetings.com, postmaster@microsoftminiac.com, postmaster@microsoftplanner.com, postmaster@microsoftpresence.com, postmaster@microsoftsurfacedial.com, postmaster@microsoftsurfacestudio.com, postmaster@microsoftteam.com, postmaster@microsoftteams.com, postmaster@office365planner.com, postmaster@visioonline.com, postmaster@windowsiot.com, postmaster@windowsvr.com 送达了投诉书和所有附件，包括一份最后期限为May 2, 2017的投诉书书面通知，根据此通知，被投诉人可对投诉人投诉书做出答辩。同样于April 12, 2017，用于通知被投诉人已向所提供的电子邮件地址发送邮件和答辩最后期限的投诉书书面通知将通过邮寄和传真送达给被投诉人及所有涉案对象和被投诉人域名注册资料中记载的技术联系人、管理联系人和缴费联系人等人员。

于 May 1, 2017收到答辩。被投诉人準时提交了答辩书。

投诉人的其他提交诉讼文件应于补充规则第 7 条规定的 May 3, 2017内提交。投诉人的补充文件于期限内收到。

在 May 15, 2017，根据投诉人由只含一人的陪审团裁决争议的请求，国家仲裁院指定 David L. Kreider 担任陪审员。

寻求补救措施

投诉人要求域名从被投诉人处还给投诉人。

双方当事人主张

投诉人

TRADEMARK/SERVICE MARK INFORMATION

Founded in 1975, Microsoft is a worldwide leader in software, services and solutions that help people and businesses realize their full potential.

The Azure Trademark

Microsoft began using the AZURE trademark at least as early as 2008 along with its famous WINDOWS mark (“WINDOWS AZURE”) and alone (“AZURE”) since at least as early as 2013. Microsoft has used the mark continuously since that time in connection with its cloud computing platform. It has been reported that the AZURE product is the most popular cloud computing platform, with Amazon and Google’s platforms trailing behind.

The AZURE trademark is registered in the United States and elsewhere around the world. The AZURE trademark was registered long before Respondent registered the disputed domain name <azurenotebooks.com> on December 6, 2016.

The Hololens Mark

One of Microsoft’s most innovative products is the first holographic computer running Windows 10 which is completely wireless, allowing the user to place holograms in his or her physical environment. This product is named HOLOLENS.

Microsoft officially introduced the HOLOLENS trademark and product to the press and public on January 21, 2015. In early March of 2016, weeks prior to the registration of <hololensemulator.com>, the press announced that Microsoft would be launching its Hololens emulator to allow developers to test holographic apps on their PC.

The HOLOLENS trademark is registered in China where Respondent resides and elsewhere around the world. The HOLOLENS trademark was registered long before Respondent registered the disputed domain name <hololensemulator.com> on December 6, 2016.

The Microsoft Mark

The MICROSOFT mark was first used by Complainant at least as early as 1975, was continuously used thereafter, and is still in use in connection with software and other goods and services. According to surveys by Interbrand Corp., MICROSOFT was the third most valuable brand in the world in 2009 through 2011, the fifth most valuable brand in 2012 through 2014, and the fourth most valuable brand in 2015 and 2016. In addition, the MICROSOFT trademark has been found by panelists of the National Arbitration Forum and WIPO to be an internationally famous and distinctive mark. See Microsoft Corporation v. Tran Van Thong, FA 1533611 (FORUM Jan 9, 2014)(agreeing with complainant that it was inconceivable that respondent could have registered <microsoft247.com> without actual knowledge of the MICROSOFT mark given its fame and notoriety); Microsoft Corp. v. OzGrid Business Applications, FA 314308 (FORUM Oct. 6, 2004)(noting that Complainant’s MICROSOFT mark “has become distinctive, well-known and has developed considerable goodwill”); Microsoft Corp. v. Thompson, D2004-1097 (WIPO April 14, 2005)(noting that several previous panels have concluded that Complainant’s MICROSOFT trademark is internationally famous and “readily” subscribing to these findings)(citations omitted); Microsoft Corp. v. Lybrand, D2005-0020 (WIPO March 18, 2005)(noting that the “uncontested evidence indicates plainly that MICROSOFT is a famous mark, and indeed, several previous WIPO panels have recognized it as such”)(citations omitted); Microsoft Corp. v. Ahmed, D2000-0548 (WIPO July 21, 2000)(finding that Complainant’s MICROSOFT mark is “well known throughout the world”).

Microsoft owns more than 25 United States registrations for the MICROSOFT trademark and hundreds more registrations for the mark throughout the world. Each of these registrations were applied for and issued well prior to the registration of the disputed domain names that contain the famous MICROSOFT trademark.

The Office 365 Mark

Microsoft began using Microsoft Office as a trademark as early as 1989 and has used the trademark continuously since then. Among other things, Microsoft sells its Microsoft Office software for word processing, information management, presentations and other tasks. In October of 2010 Microsoft publically announced OFFICE 365 which provides for subscription based collaboration and productivity tools to be delivered to professionals and businesses through the cloud and is particularly useful for businesses that do not have IT staff or expertise in house. In December of 2015, Microsoft released OFFICE 365 PLANNER and in February of 2016, a few months prior to the registration of <office365planner.com>, Microsoft began releasing the product to other customers.

Microsoft owns registrations for its OFFICE 365 Mark with the United States Patent and Trademark Office. These registrations issued well prior to the registration of <office365planner.com> on June 6, 2016.

The Surface and Microsoft Surface Marks

Microsoft markets and sells a tablet computer under the SURFACE trademark and in December of 2015, it was reported that the Microsoft SURFACE product overtook Apple’s iPad as the top-selling tablet online. Microsoft first used the SURFACE and MICROSOFT SURFACE trademarks in connection with computer hardware at least as early as April, 2008. Microsoft obtained U.S. registrations for these marks in 2009.

Microsoft officially announced its Surface Dial and Surface Studio at an event on October 26, 2016 but rumors had been circulating a few days prior. The domain names <microsoftsurfacedial.com> and <microsoftsurfacestudio.com> were registered on October 24, 2016, the same day the rumors began circulating about these new products.

The Windows Mark

Microsoft began using the WINDOWS trademark at least as early as 1983, and has used the trademark continuously since then. For more than 30 years, Microsoft has invested substantial time, effort and money in advertising and promoting its WINDOWS products and services throughout the United States and the world. As a result, WINDOWS has become the world’s most popular computer operating platform for desktop and laptop computers. Microsoft has used numerals after its WINDOWS mark to designate the version of the WINDOWS product, such as WINDOWS 7. Id. Microsoft owns the domain name <windows.com> and uses this domain name to provide consumers with information and resources regarding its Windows operating platform and to promote various products.

The WINDOWS mark is well-known to the general public and particularly to computer users around the globe who identify the WINDOWS mark with Microsoft. The WINDOWS mark has been found to be famous around the world. See Microsoft Corp. v. Lee, D2004-0991 (WIPO Jan. 26, 2005)(“The panel finds that this trademark has so extensive a common law reputation that it qualifies as a famous mark.”); Microsoft Corp. v. Methods for Mastery, Inc., FA 1489730 (FORUM, April 25, 2013)(“There is no question that WINDOWS is a well-known trademark not only to consumers but to the general public. For this reason, the trademark WINDOWS is in fact a famous trademark”).

Microsoft has registered the WINDOWS trademark with the United States Patent and Trademark Office, and throughout the world. Microsoft used and internationally registered the WINDOWS trademark long prior to the registration of the disputed domain names <windowsiot.com> and <windowsvr.com>.

The Visio Mark

The VISIO mark is a diagramming and vector graphics applications which is part of the family of Microsoft Office products. The VISIO mark has been in use since the early 1990’s and is in continuous use and advertised on Microsoft’s website, including the use of the term VISIO ONLINE. Microsoft has registered the VISIO trademark with the United States Patent and Trademark Office and throughout the world. These registrations issued well prior to the registration of <visioonline.com> on November 2, 2016.

FACTUAL AND LEGAL GROUNDS

This Complaint is based on the following factual and legal grounds: ICANN Rule 3(b)(ix).

A. CONFUSINGLY SIMILAR DOMAIN NAMES (ICANN Rule 3(b)(ix)(1) and ICANN Policy ¶ 4(a)(i)):

Each of the disputed domain names is confusingly similar to Complainant’s famous, registered trademarks. The disputed domain names contain the AZURE, HOLOLENS, MICROSOFT, OFFICE 365, MICROSOFT SURFACE, VISIO and WINDOWS marks in their entirety, only adding generic or descriptive terms and the most common gTLD, .com.” These generic or descriptive terms are “notebooks,” “emulator,” “ai” (which is an acronym for artificial intelligence), “baas” (which is an acronym for Blockchain as a Service), “download,” “engage,” “graph,” “invoicing,” “mechanics,” “meetings,” miniac” (or “mini ac” which is a mini AC adaptor), “planner,” “presence,” “dial,” “studio,” “team,” “teams,” “planner,” “online,” “iot” (which is an acronym for the Internet of Things), and “vr” (which is an acronym for Virtual Reality).

These elements are insufficient to negate the confusing similarity between Respondent’s domain names and Complainant’s famous trademarks. See Microsoft Corp. v. Growth Strategies Mktg. Inc., FA 1431194 (FORUM April 2, 2012)(finding <microsoftofficehomeandbusiness.com>, <microsoftoffice2010formac.com> and other combinations of MICROSOFT and Office version names confusingly similar to Microsoft and awarding transfer); Microsoft Corp. v. Wicky Blown/WB FA 1698485 (FORUM, Nov. 28, 2016)(finding <windows81keys.com>, <windows8onlineshop.com> and <windowspremiumkey.com> confusingly similar to the WINDOWS trademark); Microsoft Corp. v. Wicky Blown/WB FA 1610585 (FORUM, April 24, 2015) (finding <windowsonlinestore.com>, <win7codes.com>, <win8key.com>, <windows10keys.com>, <windows10productkeys.com> and <windows81key.com> confusingly similar to the WINDOWS trademark); Microsoft Corp. v. Muhammad Imtiaz, FA 1613776 (FORUM May 22, 2015)(finding <windowskeys.co> confusingly similar to the WINDOWS trademark); Microsoft Corp. v. Wicky Blown/WB FA 1610585 (FORUM, April 24, 2015)(finding <windows10keys.com> and <windows10productkeys.com> confusingly similar to the WINDOWS trademark); Microsoft Corp. v. Juan, FA 1445083 (FORUM June 27, 2012)(finding <xbox8.org>, <xboxcompanion.com>, <xboxlivetv.com>, <xboxphone.com>, and <xboxtablet.com> confusingly similar to XBOX and awarding transfer); Microsoft Corp. v. Bingo Holdings c/o Wang, FA 1324672 (FORUM June 18, 2010)(finding <xboxonline.com> confusingly similar to XBOX and awarding transfer); Microsoft Corp. v. Benson, FA 1384468 (FORUM May 24, 2011)(finding <xboxstore.com> confusingly similar to XBOX and awarding transfer); Microsoft Corp. v. BJK c/o YILMAZ, FA 1452490 (FORUM Aug. 8, 2012)(finding <xboxvideo.com> confusingly similar to XBOX and awarding transfer); Microsoft Corp. v. Shiguo, FA 1445087 (FORUM July 4, 2012)(finding <xboxmusic.com> confusingly similar to XBOX and awarding transfer); Abbott Labs v. Whois Svc., FA 1254682 (FORUM May 14, 2009)(“the addition of a gTLD is irrelevant in distinguishing a disputed domain name from a registered mark”).

Plainly, each of Respondent’s domain names is confusingly similar to Complainant’s trademarks.

B. NO RIGHTS OR LEGITIMATE INTERESTS IN DOMAIN NAMES (ICANN Rule 3(b)(ix)(2) and ICANN Policy ¶4(a)(ii):

Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by Complainant’s AZURE, HOLOLENS, MICROSOFT, MICROSOFT SURFACE, OFFICE 365, VISIO or WINDOWS marks, nor has Respondent used the disputed domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use.

Prior to the filing of this Complaint, Respondent had shielded its identity using a privacy protection service. The privacy shield was removed and WHOIS identifies the owner of the domain names as Lin Zong Xing. Respondent is not commonly known by any of Complainant’s trademarks. Respondent is not affiliated with Complainant in any way. Respondent is not licensed by Complainant to use Complainant’s trademarks and Respondent is not an authorized vendor, supplier, or distributor of Complainant’s goods and services. See Broadcom Corp. v. Ibecom PLC, FA 361190 (FORUM Dec. 22, 2004) (finding no rights or legitimate interests where there was nothing in the record to indicate that Respondent was commonly known by the domain name); and Tencent Inc. v. Yi, FA 139720 (FORUM Feb. 10, 2003) (finding that the WHOIS information, and its failure to imply that Respondent is commonly known by the disputed domain name, is a factor in determining that Policy ¶4(c)(ii) does not apply).

Respondent has registered each of the disputed domain names but none of the domain names resolve to an active website, except for <windowsvr.com>. “One does not engender rights or legitimate interests merely based on holding domain names without any active use or demonstrable preparations to use them in connection with 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).” Nike, Inc. v. Fang Wei et al., FA 1272458 (FORUM August 21, 2009) (citations omitted). In fact, prior panels have found that inactive use or passive holding of a domain name violates the Policy. See Microsoft Corporation v. Asia Proxies/Instant Gaming Limited, FA 1686749 (FORUM, September 7, 2016)(finding the failure to use the disputed domain name to violate the Policy); Microsoft Corporation v. Zaberis, FA 1631367 (FORUM, Sept. 2, 2015); See also Sun Microsystems, Inc. v. Color Vivo Internet, FA 1282898 (FORUM October 21, 2009)(noting that failure to make any active use of a domain name is 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)); George Weston Bakeries Inc. v. McBroom, FA 933276 (FORUM Apr. 25, 2007) (finding that a respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name); and Hewlett-Packard Co. v. Shemesh, FA 434145 (FORUM Apr. 20, 2005) (finding that a respondent’s inactive use of a domain name that contains complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).

As noted, none of the disputed domain names resolve to an active site with the exception of <windowsvr.com> which goes to a page that indicates the domain name is for sale.

Acquiring a domain name containing Complainant’s famous WINDOWS trademark in order to sell it does not constitute a legitimate interest or bona fide use. See Microsoft Corporation v. Martin David, FA 1553727 (FORUM, May 12, 2014)(finding that an offer to sell the disputed domain name evidences a lack of rights and legitimate interests in the disputed domain name); Microsoft Corporation v. Chiou Ji-an, FA 1521025 (FORUM, Oct. 3, 2013)(noting that previous panels have held that the general offering of a domain name for sale, as well as the specific listing of a domain name for a given price, evidences a lack of rights or legitimate interests in the domain name because this conduct illustrates the respondent’s readiness to dispense the domain name); See Williams-Sonoma, Inc. v. Fees, FA 937704 (FORUM Apr. 25, 2007) (concluding that a respondent’s willingness to sell a domain name to the complainant suggests that a respondent has no rights or legitimate interests in that domain name under Policy ¶ 4(a)(ii)); Cruzeiro Licenciamentos Ltda v. Sallen, D2000-0715 (WIPO Sept. 6, 2000)(finding that rights or legitimate interests do not exist when one holds a domain name primarily for the purpose of marketing it to the owner of a corresponding trademark); Hewlett-Packard Co. v. High Performance Networks, Inc., FA 95083 (FORUM July 31, 2000)(finding no rights or legitimate interests pursuant to Policy ¶¶ 4(c)(i) or (iii) where the respondent registered the domain name with the intention of selling its rights); Reese v. Morgan, FA 917029 (FORUM Apr. 5, 2007)(finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name); Mothers Against Drunk Driving v. Shin, FA 154098 (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); and Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000)(finding the respondent’s conduct purporting to sell the domain name suggests it has no legitimate use).

For the above reasons, the Respondent has no rights or legitimate interests in the disputed domain names.

C. REGISTRATION AND USE IN BAD FAITH (ICANN Rule 3(b)(ix)(3) and ICANN Policy 4(a)(iii)):

Respondent registered each of the disputed domain names in bad faith.

At the time that Respondent registered the disputed domain names, Complainant’s AZURE, HOLOLENS, MICROSOFT, MICROSOFT SURFACE, OFFICE 365, VISIO and WINDOWS marks were famous and familiar to countless consumers. It is clear from the fact that Respondent’s domain names combine Complainant’s marks in their entirety, followed by generic or descriptive terms that are in most cases related to the mark, as well as the fact that many of the disputed domain names were registered in anticipation of a new product or service for Complainant, that Respondent registered the disputed domain names with knowledge of Complainant’s rights, and intended to create an association with Complainant and its products and services.

For those domain names that were registered by Respondent and are not in use, Respondent’s nonuse of the confusingly similar domain names suggests its bad faith under Policy ¶ 4(a)(iii). See Microsoft Corporation v. zaberis, FA 1631367 (FORUM, Sept. 2, 2015) (finding that the passive holding of the domain name combined with Microsoft’s good reputation showed Respondent’s bad faith); Sun v. Color Vivo, FA 1282898 (FORUM October 21, 2009)(“in order to find bad faith registration and use pursuant to Policy ¶ 4(a)(iii) it is not necessary that Respondent have put the domain name to any active use … failure to make an active use of the disputed domain name can, in and of itself, be evidence of bad faith registration and use of the domain pursuant to Policy ¶ 4(a)(iii)”); Chrisma Productions, Inc. v. Quinn Jr., FA 1263592 (FORUM July 13, 2009)(finding that Respondent’s inactive use of the <harveykorman.com> domain name constituted bad faith registration and use under Policy ¶ 4(a)(iii)); Pirelli & C. S.p.A. v. Tabriz, FA 921798 (FORUM Apr. 12, 2007)(holding that non-use of a confusingly similar domain name for over seven months constituted bad faith registration and use); Am. Broad. Cos., Inc. v. Sech, FA 893427 (FORUM Feb. 28, 2007)(concluding that a 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); DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s failure to make an active use of the domain name satisfied the requirement of bad faith under Policy ¶ 4(a)(iii)); Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000)(finding that merely holding an infringing domain name without active use can constitute use in bad faith).

As noted, Respondent is offering <windowsvr.com> for sale. It is well-established that circumstances indicating that a Respondent has registered or acquired a domain name primarily for the purpose of selling the name to the corresponding trademark holder support a finding of bad faith, and that even general offers for sale indicate bad faith. See ICANN Rule 4(b)(i); See Microsoft Corporation v. Martin David, FA 1553727 (FORUM, May 12, 2014)(finding Respondent’s offering of the disputed domain name for sale to the public was evidence that the domain was registered and is being used in bad faith under Policy ¶ 4(b)(i); Microsoft Corporation v. Chiou Ji-an, FA 1521025 (FORUM, Oct. 3, 2013)(finding that Respondent’s bad faith may be inferred from Respondent’s decision to place the domain names up for auction to the public); See also Campmor, Inc. v. GearPro.com, FA 197972 (FORUM Nov. 5, 2003) (“Respondent registered the disputed domain name and offered to sell it to Complainant for $10,600. This demonstrates bad faith registration and use pursuant to Policy ¶ 4(b)(i).”); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (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).”).

It should also be noted that Respondent has been accused in other cases of actively registering domain names in an opportunistic manner. See NVIDIA Corporation v. Linzongxing, Lin Zongxing D2015-0076 (WIPO, March 9, 2015)( The Complainant had produced evidence that “a number of the Respondent’s registrations indicate that the Respondent actively registers domain names which are either highly anticipated or prospective products or newly-announced up and coming company mergers, partnerships, products, etc. Examples include <amazoncloud.co>, <faceboook.cn>, <ipadmini4.com>, <microsoftcloud.co>, <nortonsecurity2016>, <urbaoutfitters.com>, <windowsminitablet.com>, <windowsmobile11.com>, <xbox2.cn> and <youtubemusiccommunity.com>. The act of speculatively registering domain names in order to exploit the fact that a new product may emerge cannot be an act of good faith”). In the NVIDIA case, the Panel concluded that it could not conceive of any plausible good faith use of the disputed domain name when it reviewed all of the facts, including the numerous domain name registrations that Respondent made which were a combination of a well-known mark and a generic term which relates to either highly-anticipated or prospective products. In the case of Vemte-Privee.com and Vente-Privee.com IP S.a.r.l. v. Lingzongxing, D2016-0618 (WIPO May 24, 2016) the panel found that Respondent had engaged in a pattern of conduct of registering domain names that incorporate or misspell third party trademarks which is further evidence of bad faith.

Based on the foregoing, Respondent has registered each of the disputed domain names in bad faith.

被投诉人

专家组工作人员：

你们好，我是仲裁院案件编号FA1704001725147仲裁案中涉及的21个域名的持有人lin zong xing(中文：林宗兴 )，根据《统一域名争议解决政策》第 5(b)(i)条规定被投诉人在答辩书中“特别要就投诉书中所陈述的内容和论断做出答辩和包括可以支持被投诉人（域名持有人）注册和使用该域名的一切理由…”。投诉人要获胜，必须同时成功举证政策第 4(a)(i), (ii), (iii)条所列举的三个要素。鉴于第 4(a)条的规定。现对域名仲裁案件编号：FA1704001725147涉案域名进行如下答辩。

本案涉案域名除了少数几个是我通过购买合法取得的，譬如windowsvr.com、windowsiot.com等等。其他域名都是我根据域名先注册先拥有的原则合法注册取得。

本人购买或注册这批域名，要么是因为喜欢想收藏这些域名，要么就是为了以后的项目而储备这些域名。由于域名的唯一性，如果我现在不事先注册做储备，如果被他人先注册了，我以后的项目将会无域名可用。

本人在持有本案涉案域名期间，从未有过任何损害本案投诉人的行为。也从未主动向本案投诉人推销过这批涉案域名。投诉人也未提交任何证据，能够证明我方恶意使用过本案涉案域名。同时投诉人也未提交任何证据能够证明我方主动向投诉方推销过本案涉案域名。

综合以上信息，可以判定我方是合情合理合法地持有本案涉案域名。也从未利用本案涉案域名做出过任何损害投诉人利益的行为。本人仅仅是出于喜欢或者为未来项目储备域名而注册或购买了这批域名。投诉人这种行为是赤裸裸的反向劫持域名行为。

因此，请专家组认定投诉人对本案涉案的这批域名的投诉不成立，本案涉案的这批域名仍归我（现域名持有人）所有。后附本案涉案域名。本案涉案域名如下:

<azurenotebooks.com><hololensemulator.com><microsoftai.com><microsoftbaas.com><microsoftdownload.com><microsoftengage.com><microsoftgraph.com><microsoftinvoicing.com><microsoftmechanics.com><microsoftmeetings.com><microsoftminiac.com><microsoftplanner.com><microsoftpresence.com><microsoftsurfacedial.com><microsoftsurfacestudio.com><microsoftteam.com><microsoftteams.com><office365planner.com><visioonline.com><windowsiot.com><windowsvr.com>

Language of the Proceedings

In relation to the language of these administrative proceedings Complainant asserts:

It should be noted that the Respondent filed its Response in Chinese even though Complainant has argued that the proceedings should proceed in English. Although Respondent has not argued that the proceedings should be in Chinese, Respondent reiterates that this same Respondent has been involved in other UDRP cases where the panels have found that the evidence establishes that Respondent has a working knowledge of English. See NVIDIA Corporation v. Linzongxing, Lin Zongxing D2015-0076 (WIPO, March 9, 2015) (Respondent submitted a response in Chinese which showed that he had an understanding of the nature of the proceeding and the contents of the Complaint. Additionally, the domain name and other domain names owned by the Respondent are comprised of English word trademarks in combination with generic terms which shows that he has a knowledge of the English language); See Wells Fargo v. Lin Zong Xing, FA1704833 (FORUM, Jan. 9, 2017)(finding that this same Respondent is conversant and proficient in the English language based on the domain names registered and the websites that they point to). As a result, it is clear that English is the appropriate language for the proceeding.

(emphasis added)

The Panel’s Decision on Language

In fact, contrary to Complainant’s assertion above, Respondent has argued that these proceedings should be conducted in Chinese. The Panel notes the following Chinese language email correspondence from Respondent to the Forum dated May 4, 2017:

“我方不懂英文请用中文谢谢根据ICANN域名仲裁相关条款我方强烈要求用中文因为我方不懂英文”

And,

“很抱歉 我方不懂英文，況且我方在易名中国注册的域名，域名注册协议就是中文，根据ICANN域名仲裁相关规定，我方有权要求使用中文。”(emphasis original)

The Panel (who speaks fluently and reads Mandarin Chinese as a second language) translates the Respondent’s emails, as follows:

“I don’t understand English. Please use Chinese, thank you. According to the relevant ICANN UDRP articles, I vehemently demand that Chinese be used, as I don’t understand English.”

And:

“Very sorry, I don’t understand English. Given that I registered the domains with China’s Ename Technology Co. Ltd., and the registration agreement is written in Chinese, according to the relevant ICANN UDRP rules, I am entitled to demand the use of Chinese.”

Respondent’s email protestations as to his inability to understand English notwithstanding, fairness requires that this panel concurrently weigh and consider Complainant’s interests as well as the findings of earlier panels when presented with the same language issue in relation to this same Respondent.

Complainant avers as follows:

“All of the disputed domain names show that Respondent has a working knowledge of the English language because the domain names include trademarks and English language words such as notebooks, emulator, download, invoicing and the like. Additionally, other decisions against this same Respondent have proceeded in the English language even though the registration agreement was in Chinese because it was found that Respondent has a level of familiarity with and knowledge of English. See NVIDIA Corporation v. Linzongxing, Lin Zongxing D2015-0076 (WIPO, March 9, 2015) (Respondent submitted a response that indicated an understanding of the English language and the domain names registered by the Respondent consist of English word trade marks in combination with generic terms); See Wells Fargo v. Lin Zong Xing, FA 1704833 (FORUM, Jan. 9, 2017)(finding that this same Respondent is conversant and proficient in the English language based on the domain names registered and the websites that they point to).”

The Panel notes that, under circumstances virtually identical to those of the present proceedings, The NVIDIA Panel specifically found in relation to this same Respondent:

“The Respondent is a sophisticated domainer who regularly registers domain names.

….

Further, a number of the Respondent’s registrations indicate that the Respondent actively registers domain names which are either highly anticipated or prospective products or newly-announced up and coming company mergers, partnerships, products, etc.

Examples include <amazoncloud.co>, <faceboook.cn>, <ipadmini4.com>, <microsoftcloud.co>, <nortonsecurity2016>,

<urbaoutfitters.com>, <windowsminitablet.com>, <windowsmobile11.com>, <xbox2.cn> and <youtubemusiccommunity.com>.”

That is, earlier panels in both the NVIDIA and the Wells Fargo & Company decision to which Complainant refers, each found on the evidence presented that the Respondent, Lin Zong Xing, is conversant and proficient in the English language and that the proceedings in those actions would be conducted in English.

After reviewing the evidence in the present case, as well as the decisions in NVIDIA and the Wells Fargo & Company, the Panel decides that no prejudice will result to Respondent and that unnecessary and unreasonable delay and expense would likely result to Complainant, if this Panel were to require that the Complaint and evidentiary exhibits be translated into Chinese.

With a view to promoting fairness and efficiency, the panel will, to the extent practicable, accept and adopt the Complainant’s submissions in English, and will accept and adopt the Respondent’s submissions in Chinese.

The Panel’s findings will be expressed in English and Chinese for the convenience of both parties. In the event of discrepancies where both languages appear, the English text will prevail over the Chinese translation.

审查结果

讨论

《统一域名争议解决政策规则》（“规则”）中 15(a) 段规定，陪审团“应基于当事人所提交的陈述及证据，根据争议解决政策、本规则以及可予使用的法律规则和原则裁决争议”。

规则 4(a) 段要求投诉人必须逐个证明以下 3 个因素以获得庭训要求域名被取消或转让：

(1) 被投诉人注册的域名与投诉人享有权利的商品商标或服务商标相同或具有足以导致混淆的相似性；

(2) 被投诉人对成为诉讼标的的域名不享有权利或合法权益；和

(3) 被投诉人系恶意注册和使用域名。

相同和/或足以导致混淆的相似性

Each of the disputed domain names is confusingly similar to Complainant’s famous, registered trademarks and incorporate in their entirety Complainant’s AZURE, HOLOLENS, MICROSOFT, OFFICE 365, MICROSOFT SURFACE, VISIO and WINDOWS marks, adding only the TLD “.com”.

The panel finds that ¶ 4(a)(i) of the Policy is satisfied.

本案中的各个争议域名均与投诉人颇享声誉的注册商标極为相似并足以导致混淆。这批争议域名完全包含了投诉人商标的AZURE, HOLOLENS, MICROSOFT, OFFICE 365, MICROSOFT SURFACE, VISIO和WINDOWS等字樣，仅仅加了 “.com”的TLD.

本专家组判定本案满足了政策中4(a)(i)条件。

权利或合法权益

Respondent is not commonly known by Complainant’s AZURE, HOLOLENS, MICROSOFT, MICROSOFT SURFACE, OFFICE 365, VISIO or WINDOWS marks, nor has Respondent used the disputed domain names in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use.

The panel finds that ¶ 4(a)(ii) of the Policy is satisfied.

被投诉人并不以投诉人的AZURE, HOLOLENS, MICROSOFT, MICROSOFT SURFACE, OFFICE 365, VISIO和WINDOWS等商标而为人知，且并不使用争议域名提供任何货品服务销售或其他正当，公平的非商业用途。本专家组判定本案满足了政策中第 4(a)(ii)条件。

恶意注册和使用

Respondent’s claims that it has registered and passively held the disputed domain names because Respondent liked collecting the names and wanted to use them for unspecified future projects notwithstanding, at least the following circumstances, viewed together and not standing alone, compel a finding of bad faith registration and use of each of the disputed domain names:

1) At the time that Respondent registered the disputed domain names, Complainant’s AZURE, HOLOLENS, MICROSOFT, MICROSOFT SURFACE, OFFICE 365, VISIO and WINDOWS marks were famous and familiar to countless consumers;

2) Prior to the filing of the Amended Complaint, Respondent had shielded its identity using a privacy protection service;

3) Although most of the disputed domain names do not resolve to active websites, the <windowsvr.com> domain resolves to a page indicating that the domain is for sale;

4) Many of the disputed domain names were registered in anticipation of a new product or service for Complainant with similar names, thus, evidencing Respondent’s intention wrongfully to create an association with Complainant and its products and services;

5) Respondent has been accused in other UDRP cases of actively registering domain names in an opportunistic manner; and

6) based on an investigation that Complainant conducted through counsel in China related to <microsoftteams.com>, it was determined that Respondent was offering the domain name for sale for 200,000 RMB or approximately $30,000 USD.

Respondent’s practice of opportunistically registering domain names in order to exploit the fact that new products may emerge demonstrates bad faith.

In light of all of the circumstances, including the worldwide reputation of the Complainant and fame of the marks, this Panel, like the NVIDIA panel when it considered that actions of this same Respondent, cannot conceive of any plausible good faith use of the disputed domain names by the Respondent.

Finally, the Panel finds that Respondent’s allegations of reverse domain name hijacking by Complainant are wholly baseless and without merit.

被投诉人声称因喜欢收藏或为了以后的项目而注册，拥有这批争议域名，但整体上来看，综观下列情况，则能轻易达到被投诉人恶意注册和使用争议域名的结论：

1) 在被投诉人注册这批争议域名时，AZURE, HOLOLENS, MICROSOFT, MICROSOFT SURFACE, OFFICE 365, VISIO 和WINDOWS是有名的商标，且为廣大群众熟知；

2) 在投诉人提交投诉书之前，被投诉人刻意的隐瞒了真正的身份；

3) 雖然这批争议域名大部份没有活跃的网站，但其中<windowsvr.com>指向一页推销该域名；

4) 这批争议域名中包含了许多投诉人尚未问世（但已注册的）货品或服务的商标及字樣，显示了被投诉人蓄意且不正当的想把自己和投诉人的名声连接在一起；

5) 被投诉人在其他UDRP案件中，曾被指控以投机且不正当的方式注册域名；

6) 根据投诉人在中国的律师的调查，被投诉人曾以人民币200，000 即美金30，000 的价钱，试图销售<microsoftteams.com>域名。

被投诉人利用投诉人即将出茏的新货品，服务而恶意注册完全相同或大致相同的争议域名之一贯的投机行为成立。

综上各个情况，并考虑到投诉人享誉全球的名声和商标，本专家组，正同NVIDIA的专家组关注此被投诉人之行为後的决定，判定被投诉人并无可能合法且正当的使用这批争议域名。

最後，本专家组认为被投诉人指控投诉人“赤裸裸的反向劫持域名行为”毫无根据而不能成立。

裁决

通过审查根据 ICANN 政策要求的三方面因素，陪审团决定同意补救措施 (TRANSFERRED)。

因此，兹命令被投诉人向投诉人转让<azurenotebooks.com>, <hololensemulator.com>, <microsoftai.com>, <microsoftbaas.com>, <microsoftdownload.com>, <microsoftengage.com>, <microsoftgraph.com>, <microsoftinvoicing.com>, <microsoftmechanics.com>, <microsoftmeetings.com>, <microsoftminiac.com>, <microsoftplanner.com>, <microsoftpresence.com>, <microsoftsurfacedial.com>, <microsoftsurfacestudio.com>, <microsoftteam.com>, <microsoftteams.com>, <office365planner.com>, <visioonline.com>, <windowsiot.com>, <windowsvr.com> 域名。

David L. Kreider，陪审员／专家组
日期：May 20, 2017