Microsoft Corporation v. Naeem Haider / Microsoftwares
Claim Number: FA1808001802323
Complainant is Microsoft Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Naeem Haider / Microsoftwares (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <microsoftwares.com>, registered with BigRock Solutions Ltd.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 20, 2018; the Forum received payment on August 20, 2018.
On August 20, 2018, BigRock Solutions Ltd confirmed by e-mail to the Forum that the <microsoftwares.com> domain name is registered with BigRock Solutions Ltd and that Respondent is the current registrant of the name. BigRock Solutions Ltd has verified that Respondent is bound by the BigRock Solutions Ltd 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 August 21, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 10, 2018 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@microsoftwares.com. Also on August 21, 2018, 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 Forum transmitted to the parties a Notification of Respondent Default.
On September 14, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a worldwide leader in software, services, and solutions that help people and businesses realize their full potential. Complainant has rights in the MICROSOFT mark based upon its registration of the mark in the United States in 1982. The mark is registered elsewhere around the world and it is famous.
Complainant alleges that the disputed domain name is confusingly similar to its MICROSOFT mark because it wholly incorporates the mark, and is only differentiated by the addition of the generic or descriptive term “wares” and the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not licensed or otherwise authorized to use Complainant’s MICROSOFT mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent attempts to pass off as Complainant to offer competing goods and services. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and has used the disputed domain name in bad faith. Respondent attempted to attract, for commercial gain, users to the disputed domain name’s resolving website where Respondent attempted to pass off as Complainant to sell competing goods and services. Respondent also attempted to conceal its identity through the use of a privacy service. Furthermore, Respondent had actual and constructive knowledge of Complainant’s rights in the MICROSOFT mark prior to registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark MICROSOFT dating back to 1982. The mark is famous.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent used the disputed domain names to resolve to a web site that promoted products and services that compete with those of Complainant.
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 (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 is confusingly similar to Complainant’s MICROSOFT mark because it wholly incorporates the mark while adding the generic term “wares” and a gTLD. Such changes do not sufficiently distinguish the disputed domain from Complainant’s mark. See Microsoft Corp. v. Wicky Blown/WB, FA 1610585 (Forum April 24, 2015) (finding <windowsonlinestore.com> confusingly similar to the WINDOWS trademark); Microsoft Corp. v. Nextnet Tech 9 c/o Domain Admin, FA 1075555 (Forum Oct. 23, 2007) (finding <microsoftstore.com> confusingly similar to the MICROSOFT trademark). Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to identify a respondent per Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information of record identifies Respondent as “Naeem Haider / Microsoftwares.” While this might indicate that Respondent could be commonly known by the disputed domain name, Respondent fails to provide affirmative evidence to support the WHOIS information. See Walgreen Co. v. MUHAMMAD SALEEM / WALGREENSGENERAL TRADING LLC, FA 1790453 (Forum July 1, 2018) (finding that though the respondent gave its business name as “WALGREENSGENERAL TRADING LLC” upon registration of the domain name, it failed to present affirmative evidence it was commonly known by the <walgreensshop.com> domain name and thus did not have rights or legitimate interests in the name per Policy ¶ 4(c)(ii)). Therefore, the Panel finds that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii).
Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Instead, Respondent attempted to pass off as Complainant to offer competing services for commercial gain. Specifically, Complainant provides a screenshot of the resolving website that offered computer related services. Using a disputed domain name to pass off as a complainant to offer goods and services that compete directly with the complainant may not constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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).”). Accordingly, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s famous mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent used the disputed domain name to pass off as Complainant and sell competing services. Attempting to pass off as a complainant to sell goods or services in direct competition with those of the complainant is evidence of bad faith per Policy ¶ 4(b)(iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business). Accordingly, the Panel finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microsoftwares.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 14, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page