Microsoft Corporation v. MADHAN KUMAR
Claim Number: FA1711001757739
Complainant is Microsoft Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is MADHAN KUMAR (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <microsoftwindowssupport.com>, registered with eNom, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 8, 2017; the Forum received payment on November 8, 2017.
On November 9, 2017, eNom, LLC confirmed by e-mail to the Forum that the <microsoftwindowssupport.com> domain name is registered with eNom, LLC and that Respondent is the current registrant of the name. eNom, LLC has verified that Respondent is bound by the eNom, LLC 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 November 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 4, 2017 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@microsoftwindowssupport.com. Also on November 14, 2017, 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 from Respondent no response meeting the requirements of the Policy and its attendant Rules, the Forum transmitted to the parties a Notification of Respondent Default.
On December 7, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a compliant response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a worldwide leader in the creation and marketing of computer software and related services.
Complainant uses its MICROSOFT and WINDOWS marks to promote its products and services.
Complainant holds a registration for those marks, which are on file with the United States Patent and Trademark Office (“USPTO”) (MICROSOFT: Registry No. 1,200,236, registered July 6, 1982; WINDOWS: Registry No. 1,872,264, registered January 10, 1995).
Respondent registered the <microsoftwindowssupport.com> domain name on September 11, 2016.
The domain name is confusingly similar to Complainant’s MICROSOFT and WINDOWS marks.
Complainant has not licensed or otherwise authorized Respondent to use its marks in any fashion.
Respondent has not been commonly known by the domain name.
Respondent is not using the domain name in connection with a bona fide offering of goods or services or in a legitimate noncommercial or fair use.
Instead, Respondent uses the domain name to pass itself off as Complainant by diverting Internet users to Respondent’s website, which purports to offer technical support for a fee.
Respondent does not have rights to or legitimate interests in the domain name.
Respondent attempts to attract Internet traffic and commercially benefit from the goodwill associated with Complainant’s marks by creating confusion as to the source, sponsorship or affiliation of the domain name and its resolving website by using the marks of Complainant.
Respondent knew of Complainant’s rights in the MICROSOFT and WINDOWS marks at the time it registered the domain name.
Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding meeting the requirements of the Policy and its attendant Rules. However, in an e-mail message addressed to the Forum, Respondent has declared as follows:
“[W]e don’t mind taking the domain down or handing the rights over to you.”
DISCUSSION
Paragraph 4(a) of the Policy requires that, in the ordinary course, Complainant must prove each of the following in order to obtain from a Panel a decision that a domain name be transferred:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the same domain name has been registered and is being used by Respondent in bad faith.
Notwithstanding the foregoing, Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Further, Policy ¶ 3(a) provides for the transfer of a domain name registration upon the written instructions of the parties to a UDRP proceeding without the need for otherwise required findings and conclusions. See, for example, Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum January 13, 2004:
In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See also Disney Enterprises, Inc. v. Morales, FA 475191 (Forum June 24, 2005):
[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.
DECISION
Respondent does not contest the material allegations of the Complaint, and, in particular, it does not contest Complainant’s request that the disputed domain name be transferred to Complainant. Rather, in the face of Complainant’s demand that the domain name be transferred to it, Respondent has expressed in writing its willingness to surrender it. Thus the parties have effectively agreed in writing to a transfer of the domain name from Respondent to Complainant without the need for further proceedings.
Accordingly, it is Ordered that the domain name <microsoftwindowssupport.com> be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 14, 2017
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