Microsoft Corporation v. Bhaiti dutta / MS aide / dupont bernard / Vezo Hustu
Claim Number: FA2304002039095
Complainant is Microsoft Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Bhaiti dutta / MS aide / dupont bernard / Vezo Hustu (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <microsoftaide.com>, <microsoftaides.com>, <microsoftaid.com> and <aidemicrosoft.com>, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on April 6, 2023; Forum received payment on April 6, 2023.
On April 7, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <microsoftaide.com>, <microsoftaides.com>, <microsoftaid.com> and <aidemicrosoft.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 April 10, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 1, 2023 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@microsoftaide.com, postmaster@microsoftaides.com, postmaster@microsoftaid.com, postmaster@aidemicrosoft.com. Also on April 10, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On May 7, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The Panel finds that the domain names are under common control as the websites displayed at these domains appear to be identical. Further, the disputed domain names have similar structures and were registered with the same registrar; and the registrants of the disputed domain names are all in India and have similar email structures. This is sufficient to find that the domain names were registered by the same domain name holder. See The Valspar Corporation v. Zhou Zhiliang / zhouzhiliang / Zhiliang Zhou / Eric Chow / Visspa Ltd., FA100800133934 (Forum Sept. 28, 2010); see also BBY Solutions, Inc. v. White Apple / Dev Kumar, FA1805001787251 (Forum June 20, 2018).
Consequently, the Panel will rule on all four contested domain names, and the four registrants are collectively referred to as “Respondent”.
A. Complainant
Complainant states that, founded in 1975, 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 through its registration in the United States in 1982. The mark is registered elsewhere around the world, including in India, and it is famous.
Complainant alleges that the disputed domain names are identical or confusingly similar to its MICROSOFT mark as they incorporate the mark in its entirety and merely add the generic words “aide” (the French term for “help”), “aides”, or “aid” and the “.com” generic top-level-domain name ("gTLD"). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Respondent been authorized by Complainant to use the MICROSOFT mark. Respondent has not used the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the resolving websites display Complainant’s mark and logo and purport to be offering support from Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. Respondent’s websites disrupt Complainant’s business as Respondent registered the disputed domain names to pass off as Complainant and give a false impression that its services are offered or sponsored by Complainant. Respondent had actual knowledge of Complainant’s rights in the MICROSOFT mark prior to registering the disputed domain names. 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 and uses it to provide software and services.
The disputed domain names were registered in 2021 and 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to websites site that displays Complainant’s mark and logo and purport to be offering support from 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 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 disputed domain names incorporate Complainant’s MICROSOFT mark in its entirety and merely add the generic words “aide” (the French term for “help”), “aides”, or “aid” and the “.com” generic top-level-domain name ("gTLD"). Under Policy ¶ 4(a)(i), adding a gTLD and/or generic terms and/or relevant or meaningless letters is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element.”); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Respondent is not licensed or otherwise authorized to use Complainant’s MICROSOFT mark. Respondent is not commonly known by the disputed domain names: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is known by a disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Where the WHOIS is related to the disputed domain name, the Panel may still find the respondent lacks rights or legitimate interest in the disputed domain name if the respondent lacks authorization to use the complainant’s mark and the respondent fails to provide affirmative evidence in support of its identity. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name identifies the registrant as “Bhaiti dutta / MS aide / dupont bernard / Vezo Hustu” but Respondent provides no affirmative evidence in support of this identity and no evidence in the record suggests Respondent is authorized to use the MICROSOFT mark or its abbreviation MS. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names per Policy ¶ 4(c)(ii).
The resolving website attempts to pass off as Complainant by prominently displaying Complainant’s e MICROSOFT mark and logo and purporting to offer support services. Using a disputed domain name to pass off as a complainant may not be a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Microsoft Corporation v. Salomon Perth / Licencias Microsoft Colombia FA 1978111 (Forum Jan. 26, 2022) (finding the use of <microsoft-colombia.com> with the use of the Microsoft mark and logo constituted passing off and established Respondent’s lack of rights or legitimate interests in the domain name); see also Microsoft Corp. v. Bertrand Tucker, FA 1658489 (Forum Feb. 25, 2016)(finding that the use of <xboxliveanniversary.com> in connection with a website that uses Complainant’s marks, logos and trade dress in a misleading manner establishes Respondent’s lack of rights or legitimate interests in the disputed domain name); see also Mulberry Co. (Design) Ltd. v. Chen, D2010-1718 (WIPO Nov. 26, 2010) (“[The] disputed domain names are being used by the Respondent for websites which falsely appear to be affiliated, connected or associated with the Complainant. In this Panel’s view, such use and purpose of the disputed domain names without the authorization of the trade mark owner shows that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain names or a bona fide offering of goods and services.”). The Panel therefore finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s 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 names.
Indeed, as already noted, by using Complainant’s mark in the disputed domain names, and by prominently displaying the mark and logo at the resolving websites, Respondent creates the false impression that its services are offered or sponsored by Complainant. This evidences Respondent’s bad faith registration and use of the disputed domain names under Policy ¶ 4(b)(iv). See MetroPCS, Inc. v. Robertson, FA0609000809749 (Forum Nov. 13, 2006) (finding bad faith where the respondent’s web site gave the false impression of being affiliated with the complainant); see also Microsoft Corporation v. Salomon Perth / Licencias Microsoft Colombia FA 1978111 (Forum Jan. 26, 2022) (“We are persuaded by the evidence that Respondent’s registration and use of the <microsoft-colombia.com> domain name, which we find to be confusingly similar to Complainant’s MICROSOFT trademark and service mark, as alleged in the Complaint, is an attempt by Respondent to profit illicitly from the confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain name. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain name.”); see also Flipgrid, Inc. and Microsoft Corporation v. Carolina Rodrigues / Fundacion Comercio Electronico FA 1908522 (Forum Sept. 14, 2020) (finding the use of the disputed domain name to pass itself off as Complainant was bad faith under the Policy); see also Hunter Fan Co. v. MSS, FA 98067 (Forum Aug. 23, 2001) (finding bad faith where the respondent used the disputed domain name to mislead Internet users by implying that the respondent was affiliated with the complainant); see also MidFirst Bank v. Smith, FA0907001274302 (Forum Aug. 31, 2009) (use of the disputed domain name to pass oneself off as the Complainant constitutes bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv)); see also Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that respondent’s use of the disputed domain name misrepresent itself as a complainant supported a finding of bad faith). Thus the Panel finds that Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain names with actual knowledge of Complainant’s mark: the resolving websites display Complainant’s mark and logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microsoftaide.com>, <microsoftaides.com>, <microsoftaid.com> and <aidemicrosoft.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 8, 2023
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