Microsoft Corporation v. radha kumari
Claim Number: FA1903001833572
Complainant is Microsoft Corporation ("Complainant"), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is radha kumari ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xboxsupport.org>, registered with GoDaddy.com, LLC.
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 March 12, 2019; the Forum received payment on March 12, 2019.
On March 12, 2019, GoDaddy.com, LLC confirmed by email to the Forum that the <xboxsupport.org> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 March 13, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 2, 2019 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@xboxsupport.org. Also on March 13, 2019, 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 April 5, 2019, 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 59 million monthly active users. Complainant's XBOX mark is registered in the United States, India, and other jurisdictions. Complainant claims that the XBOX mark has become famous, and refers to several previous decisions rendered under the Policy that have so found.
Respondent registered the disputed domain name <xboxsupport.org> in March 2018. The domain name is being used for a website entitled "Xbox Tech Support" that offers support services for Complainant's XBOX system. The website prominently displays Complainant's XBOX mark and logo, and uses the same color scheme and style as Complainant's own website. It does not appear to contain any other source indicators nor disclaim a connection to Complainant. Complainant states that Respondent is not affiliated with Complainant and is neither commonly known by nor authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <xboxsupport.org> is confusingly similar to its XBOX mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 is being 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 Management, 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 <xboxsupport.org> incorporates Complainant's registered XBOX trademark, adding the generic term "support" and the ".org" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Microsoft Corp. v. null / Sanchez, Oscar / Rydal Penrhos School, FA 1473913 (Forum Jan. 17, 2013) (finding <xboxsafety.com> and <xboxaccount.com> confusingly similar to XBOX); Yahoo! Inc. v. Rajesh Singh / w2c technologies, FA 1555871 (Forum June 2, 2014) (finding <yahoosupport.org> confusingly similar to YAHOO!). Accordingly, the Panel considers the disputed domain name to be confusingly similar to Complainant's registered 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 Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used to promote what appear to be competing services, in a manner designed to create a false impression of affiliation with or endorsement by Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Dell Inc. v. Imtiyaz Ahmed, FA 1799096 (Forum Aug. 29, 2018) (finding lack of rights or interests under similar circumstances); Hewlett-Packard Development Co., L.P. v. Kevin Jonson, FA 1755743 (Forum Nov. 21, 2017) (same).
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 is being 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 incorporating Complainant's famous mark, together with the use of the domain name for a website that promotes what appear to be directly competing services by creating confusion with Complainant, is indicative of bad faith under these provisions of the Policy. See, e.g., Dell Inc. v. Imtiyaz Ahmed, supra (finding bad faith under similar circumstances); Hewlett-Packard Development Co., L.P. v. Kevin Jonson, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <xboxsupport.org> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 10, 2019
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