Microsoft Corporation v. Alive Ventures,
Claim Number: FA0704000960326
Complainant is Microsoft Corporation (“Complainant”), represented by Molly
Buck Richard, of Richard Law Group, Inc.,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <videochatmsn.net>, registered with Enom, Inc.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On April 19, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of May 9, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@videochatmsn.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On may 14, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <videochatmsn.net> domain name is confusingly similar to Complainant’s MSN mark.
2. Respondent does not have any rights or legitimate interests in the <videochatmsn.net> domain name.
3. Respondent registered and used the <videochatmsn.net> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Microsoft Corporation, is an internationally renowned computer software company. In connection with the provision of these services, Complainant has registered a number of trade and service marks with the United States Patent and Trademark Office (“USPTO”) including the MSN mark (Reg. No. 2,191,997 issued April 25, 1997).
Respondent registered the <videochatmsn.net>
domain name on
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."
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(e), 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 (Nat. Arb. 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.”).
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.
Complainant asserts rights in the MSN mark through
registration with the USPTO. The Panel
finds that Complainant’s timely registration of the MSN mark with the USPTO
sufficiently establishes rights in the mark pursuant to Policy ¶ 4(a)(i). See Vivendi Universal Games v. XBNetVentures
Inc., FA 198803 (Nat. Arb. Forum
Respondent’s <videochatmsn.net> domain name contains Complainant’s mark in its entirety, adds the generic terms “video” and “chat,” which relate to Complainant’s business, and the generic top-level domain (“gTLD”) “.com.” The Panel finds that the addition of a gTLD and generic terms that relate to Complainant’s business fails to sufficiently distinguish the domain name from the mark pursuant to Policy ¶ 4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the complainant’s mark because the generic top-level domain (gTLD) “.com” after the name POMELLATO is not relevant); see also Brambles Indus. Ltd. v. Geelong Car Co. Pty. Ltd., D2000-1153 (WIPO Oct. 17, 2000) (finding that the domain name <bramblesequipment.com> is confusingly similar because the combination of the two words "brambles" and "equipment" in the domain name implies that there is an association with the complainant’s business).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks all rights and
legitimate interests in the <videochatmsn.net>
domain name. Once Complainant makes a prima facie case in support of its
allegations, the burden shifts to Respondent to show that it does possess
rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO
Respondent’s disputed domain name resolves to a website featuring adult-oriented material. The Panel finds that Respondent’s use of the disputed domain name registration is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Isleworth Land Co. v. Lost In Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (finding that the respondent’s use of its domain name to link unsuspecting Internet traffic to an adult-oriented website, containing images of scantily clad women in provocative poses, did not constitute a connection with a bona fide offering of goods or services or a noncommercial or fair use); see also Target Brands, Inc. v. Bealo Group S.A., FA 128684 (Nat. Arb. Forum Dec. 17, 2002) (finding that use of the <targetstore.net> domain name to redirect Internet users to a website featuring adult-oriented material did not equate to a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of a domain name under Policy ¶ 4(c)(iii)).
A review of Respondent’s WHOIS information reveals that the
registrant of the <videochatmsn.net>
domain name is “Alive Ventures,
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent presumably derives financial benefit from the
diversionary use of the disputed domain name.
Respondent’s use redirects unsuspecting Internet users to its own commercial
website. The Panel finds that such use
constitutes an attraction for commercial gain, which evinces registration and
use in bad faith pursuant to Policy ¶ 4(b)(iv).
See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb.
Forum Jan. 8, 2003) (finding that the disputed domain name was registered and
used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s
registration and use of the infringing domain name to intentionally attempt to
attract Internet users to its fraudulent website by using the complainant’s
famous marks and likeness); see also Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22, 2003) (“Registration
and use of a domain name that incorporates another's mark with the intent to
deceive Internet users in regard to the source or affiliation of the domain
name is evidence of bad faith.”).
The disputed domain name resolves to a website featuring adult-oriented material. The Panel finds that such use constitutes registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Ty, Inc. v. O.Z. Names, D2000-0370 (WIPO June 27, 2000) (finding that absent contrary evidence, linking the domain names in question to graphic, adult-oriented websites is evidence of bad faith); see also CCA Indus., Inc. v. Dailey, D2000-0148 (WIPO Apr. 26, 2000) (“this association with a[n adult-oriented] web site can itself constitute a bad faith”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <videochatmsn.net> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 24, 2007
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