Microsoft Corporation v. Demet Yohannes
Claim Number: FA2102001930804
Complainant is Microsoft Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Demet Yohannes (“Respondent”), Lithuania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <microsoftdcu.com> (‘the Domain Name’), registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 3, 2021; the Forum received payment on February 3, 2021.
On February 4, 2021, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <microsoftdcu.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 4, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 24, 2021 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@microsoftdcu.com. Also on February 4, 2021, 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 February 26, 2021 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant is the owner of the mark MICROSOFT registered, inter alia, in the USA for computer related goods and services with first use recorded as 1975. The mark is well known. Since 2008, the Complainant has had a team of international legal and internet security experts to stop cybercrime and cyber threats, knows as Microsoft Digital Crimes Unit (‘DCU’).
The Domain Name registered in 2020 is confusingly similar to the Complainant’s trade mark containing it in its entirety and adding only the descriptive terms ‘dcu’ and the gTLD “.com”.
Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by the Domain Name and is not authorized by the Complainant.
The Domain Name points to the Complainant’s official web site and has been used for fraudulent e mails to impersonate the Complainant. This is not a bona fide offering of goods or services or legitimate noncommercial fair use. It is registration and use in bad faith in actual knowledge of the Complainant’s rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark MICROSOFT registered, inter alia, in the USA for computer related goods and services with first use recorded as 1975. The mark is well known. Since 2008, the Complainant has had a team of international legal and internet security experts to stop cybercrime and cyber threats, knows as Microsoft Digital Crimes Unit (‘DCU’).
The Domain Name registered in 2020 has been pointed to the Complainant’s web site.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name in this Complaint combines the Complainant’s MICROSOFT mark (registered, inter alia, in the USA for computer related goods and services with first use recorded as 1975), the generic term ‘dcu’ and the gTLD “.com”.
The addition of a generic term and a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD insufficient to distinguish a disputed domain name from a mark under Policy 4(a)(i).) Accordingly the addition of the generic term ‘dcu’ and the gTLD “.com” does not prevent confusing similarity between the Complainant’s mark and the Domain Name.
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
The Panel notes the assertion that the Domain Name has been used for fraudulent e mails, but no evidence has been produced of the same.
However, the Domain Name has been pointed to the Complainant’s official site. Panels have held that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. see Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s mark which is well known for computer products.
Directing a disputed domain name to a Complainant’s website is generally considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Verizon Trademark Servs. LLC v. Boyiko, FA 1382148 (Forum May 12, 2011) (“The Panel finds that Respondent’s registration and use of the confusingly similar disputed domain name, even where it resolves to Complainant’s own site, is still registration and use in bad faith pursuant to Policy ¶ 4(a)(iii).”).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microsoftdcu.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 26, 2021
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