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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Microsoft Corporation v. Montrose Corporation

Case No. D2000 – 1568

 

1. The Parties

(a) Complainant is Microsoft Corporation, a Washington corporation with its principal place of business at Redmond, Washington, U.S.A. ("Microsoft").

(b) The Complainant’s principal contact at Microsoft with respect to this dispute is Scott Behm, Esq., Microsoft Legal and Corporate Affairs, One Microsoft Way, Redmond Washington, 98052-6399, U.S.A. ("Microsoft").

(c) The Complainant’s authorized representative in this administrative proceeding is Suzanne V. Wilson, Esq., and Parag Patel, Esq., of Arnold & Porter.

(d) Respondent, according to Network Solutions, Inc.’s Whois database is Montrose Corporation, 2533 N. Carson Street, Box M272, Carson City, NV, 89706, U.S.A. ("Montrose").

 

2. Domain Name and Registrar

(a) The domain names at issue are as follows:

<microsoft-office-2000.com>;

<microsoft-office2000.com>; and

<ms-office-2000.com>

(The "Infringing Domain Names").

(b) The registrar for the domain names at issue is Network Solutions, Inc. ("Network Solutions").

 

3. Procedural History

(a) On November 14, 2000, the Complaint was received by the WIPO Arbitration and Mediation Center (the "Center") by email for decision in accordance with the Uniform Domain Name Dispute Resolution Policy adopted by the Internet Corporation for Assigned names and Numbers ("ICANN") on August 26, 1999 (the "Policy") and in hard copy on November 15, 2000.

(b) The Center verified that the Complaint satisfies the formal requirements of the Policy, the Rules for Uniform Domain Name Dispute Resolution Policy approved by ICANN on October 24, 1999 (the "Rules") and WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").

(c) Payment in the required amount has been made by the Complainant to the Center.

(d) A copy of the Complaint, together with the cover sheet as prescribed by the Supplemental Rules, was sent or transmitted to both the Respondent and to Network Solutions, Inc. in compliance with the Rules.

(e) November 27, 2000, the Center transmitted to Network Solutions a request for registrar verification in connection with this case.

(f) On December 1, 2000, the Center received Network Solutions’ Verification Response, (1) confirming that Network Solutions had received a copy of the Complaint sent by the Complainant in accordance with the Supplemental Rules, (2) confirming that the Infringing Domain Names are registered with Network Solutions, (3) confirming that Network Solutions’ 4.0 Service Agreement is in effect, (4) confirming that the Respondent is the current registrant of the Infringing Domain Names (5) providing the full contact details that are available in Network Solutions’ Whois database for the registrant, the technical contact and the administrative contact for the Infringing Domain Names, and (6) stating that the Infringing Domain Names are in "Active" status.

(g) On December 4, 2000, the Center transmitted via post/courier and email Notification of Complaint and Commencement of the Administrative Proceeding, together with a copy of the Complaint, to the Respondent and via email to the Complainant. The Center advised that (1) the response was due by December 23, 2000, (2) in the event of default the Center would appoint a Panel to review the facts and to decide the case, (3) the Panel would be entitled to draw such inferences from Respondent’s default as it considers appropriate, (4) Microsoft had elected for the matter to be decided by a single panelist who would be appointed within five days of the date the response was due, (5) the fees for the administrative proceeding would be paid in their entirety by Microsoft, (6) the Panel would decide the case within 14 days of its appointment, and (7) the Center could be contacted at stated postal and email addresses, a stated telephone number, and a stated fax number.

(h) On December 27, 2000, the Center transmitted via email a Notification of Respondent Default to the Respondent and via email to the Complainant advising that Respondent had failed to comply with the deadline indicated in the Notification of Complaint and Commencement of Administrative Proceeding for submission of its Response and advising that the Center would proceed to appoint an Administrative Panel based on the number of panelists designated by the complainant.

(i) On January 12, 2001, the Center transmitted to the Complainant via email and to the Respondent via email, Notification of Appointment of Administrative Panel and Projected Decision Date. The notification advised that Mr. Gaynell C. Methvin had been appointed as the single panelist, and that the decision would be due on January 25, 2001.

(j) On January 12, 2001, the Center transmitted the file in this case via post/courier and email to the appointed panelist, Mr. Methvin.

 

4. Factual Background; Parties’ Contentions

a. The Trademarks

The Complaint (¶¶ 10 - 32) is based on various trademarks Microsoft registered in the U.S. Patent and Trademark Office and elsewhere.

Microsoft’s products and services include:

"computer operating systems, client/server applications, business and consumer productivity applications, software programming tools, interactive media programs, Internet platform and development tools, computer input devices, online information and entertainment services, electronic commerce services, and computer publications."

i) In connection with these goods and services, Microsoft owns, among other trademarks, the world famous trademark "Microsoft." The United States Patent and Trademark Office has granted federal trademark registrations for the Microsoft trademark in numerous classes of goods and services including, without limitation:

"Computer programs; computer hardware; information services in the fields of entertainment, movies and sports; interactive electronic retailing and on-line ordering and information systems; restaurant and travel information and reservations; electronic mail services; and books and reference material."

Copies of some of Microsoft’s United States trademark registrations for the MICROSOFT trademark are attached to the Complaint as Exhibit "D".

ii) Microsoft also owns trademark rights in the abbreviation or nickname "MS," which the general public commonly uses to refer to Microsoft.

b. The Complaint

Microsoft in support of its position asserts the following:

"10. Microsoft is a well-known, worldwide provider of computer software and related products and services, including products for use on the Internet and for developing Internet software, and online services and information delivered via the Internet. Since its inception in 1975, Microsoft has created software for use in the workplace, home, and educational institutions.

11. Microsoft’s products and services include computer operating systems, client/server applications, business and consumer productivity applications, software programming tools, interactive media programs, Internet platform and development tools, computer input devices, online information and entertainment services, electronic commerce services, and computer publications.

12. In connection with these goods and services, Microsoft owns, among other trademarks, the world famous trademark "Microsoft." The United States Patent and Trademark Office has granted federal trademark registrations for the Microsoft trademark in numerous classes of goods and services, including, without limitation: computer programs; computer hardware; information services in the fields of entertainment, movies and sports; interactive electronic retailing and on-line ordering and information systems; restaurant and travel information and reservations; electronic mail services; and books and reference material. Copies of some of Microsoft’s United States trademark registrations for the MICROSOFT trademark are attached hereto as Exhibit "D".

13. Microsoft also owns trademark rights in the abbreviation or nickname "MS," which the general public commonly uses to refer to Microsoft. See Martahus v. Video Duplication Services, Inc., 3 F.3d 417, 423 (Fed. Cir. 1993)(Acronyms and abbreviations of a business name have trade name or service mark significance); National Cable Television Assn, Inc. v. American Cinema Editors, Inc., 937 F.2d 1572, 1578 (Fed. Cir. 1991)(holding that widespread use of an acronym by the relevant marketplace established prior use in trademark usage); Blastoff, Inc. v. Los Angeles Rams, 48 U.S.P.Q.2d 1385 (W.D. Wis. 1998)(listing cases where "parties have been found to possess rights in a nickname or abbreviation of an existing mark that was used solely by others to designate its product.").

14. Microsoft has spent substantial time, effort and money advertising and promoting its Microsoft trademark throughout the United States and the world. As a result, the Microsoft trademark has become world famous, and Microsoft has developed an enormous amount of goodwill in the mark. In connection with its Microsoft trademark, Microsoft has developed, and now markets and sells a computer software package with the product name "Microsoft Office 2000," which is the most recent version of the "Microsoft Office" product series. Microsoft Office 2000 (and the Microsoft Office series in general) is a bundle of extremely popular and widely used Microsoft software products such as Microsoft Word, Excel, PowerPoint and Outlook. Since its introduction, Microsoft Office 2000 has been extremely popular in both individual and corporate markets around the world and enjoys widespread brand and product name recognition.

15. In connection with the Microsoft Marks and its Microsoft Office 2000 product, Microsoft has established Internet websites located at "microsoft.com," "microsoft.com/office," "microsoft.net" and "microsoft.net/office" (collectively, the "Microsoft Websites"). The Microsoft Websites allow computer users around the world to access information regarding Microsoft and its products, including Microsoft Office 2000. In addition, consumers can purchase Microsoft products by navigating through these websites.

16. As part of its ongoing trademark and copyright enforcement program, Microsoft discovered that Respondent had registered all three Infringing Domain Names and was purporting to do business under the name "Microsoft-Office-2000.com." Respondent used one of the three Infringing Domain Names, "Microsoft-Office-2000.com," to establish a commercial website which offered the Microsoft Office and related products for sale. Respondent had also posted commercial banner advertisements (presumably in order to create revenue for Respondent from traffic generated from the unlawful use of the Microsoft Marks) on its website. Of greater concern, Respondent identified the source of the site as "Microsoft-office-2000.com" throughout the website. Finally, Respondent added Microsoft’s trademarks and product names in its metatags, thereby diverting traffic away from the official Microsoft Websites and towards its website when an Internet user types in "Microsoft", "Microsoft Office 2000" and/or similar keywords into a search engine. As a result of this conduct, Respondent used the Infringing Domain Names, its infringing company name and metatags containing Microsoft’s marks in a manner that was likely to cause customer confusion with respect to the source of the products and information offered by Montrose. Such confusion was especially harmful to Microsoft and to Internet users in that many users may have believed that Respondent’s business and website were authorized by, sponsored by or affiliated with Microsoft.

17. Respondent’s Infringing Domain Names are identical and therefore confusingly similar to Microsoft’s trademarks ("Microsoft" and its commonly known abbreviation "MS") and product name, Microsoft Office 2000. In addition, until recently, Respondent’s website at "microsoft-office-2000.com" prominently displayed the title "Office 2000," identified its author as "Microsoft-Office-2000.com" and contained several copyrighted and trademarked logos and images of Microsoft’s Office 2000 and related products. Copies of printouts from the web pages (and associated source code) located at the "Microsoft-Office-2000.com" website on three separate occasions (September 9, 1999; May 16, 2000; and June 27, 2000) are attached hereto as Exhibits "E", "F" and "G." These facts are sufficient, by themselves, to satisfy the bad faith element required for an ICANN action. Universal City Studio, Inc. v. G.A.B. Enterprises, WIPO Case No. D2000-0416 (June 29, 2000)(respondent’s domain name "fieldofdreams.com" held to be identical and therefore confusingly similar to complainant’s product name "Field of Dreams").

18. Moreover, courts have recognized that consumers expect to find a company on the Internet at a domain name address comprised of the company’s name, trademark or product. See Panavision Int’l, L.P. v. Toeppen , 141 F.3d 1316, 1327 (9th Cir. 1998)("Using a company’s name or trademark as a domain name is also the easiest way to locate the company ’s web page."). Internet users also often use product names as keywords in search engines requests to retrieve websites that contain the product name in their metatags. See Brookfield Communications, Inc. v. West Coast Entertainment Corp., 174 F.3d 1036, 1061, fn 23 (9th Cir. 1999)("metatags are HTML code not visible to Web users but used by search engines in determining which sites correspond to the keywords entered by a Web user.").

19. Here, Respondent has attempted to take advantage of, for its own commercial advantage, the types of customer confusion identified in Panavision and Brookfield. While some Internet users will correctly identify the location of the Microsoft’s Office 2000 website as "Microsoft.com/Office," other users undoubtedly will type in "Microsoft-Office-2000.com" or use "Microsoft Office 2000" and other similar keywords in search engines to access the official Microsoft Office 2000 website. These Internet users may mistakenly arrive at Respondent’s website and be either frustrated at not reaching the official Microsoft website or be actually confused as to the connection between Respondent and Microsoft. At the very least, users arriving at Respondent’s website will be "initially confused" regarding the association of Microsoft with Respondent’s services. This "initial customer confusion" – where the infringer wrongfully capitalizes on a trademark owner’s goodwill in its mark to divert Internet traffic to the infringer’s site – has been held by the Ninth Circuit to be unlawful and to violate a trademark owner’s rights. See Brookfield Communications, Inc., 174 F.3d at 1062 ("Although there is no source confusion in the sense that customers know they are patronizing [the infringing website] rather than [the trademark owner’s website], there is nevertheless initial interest confusion in the sense that, by using ‘moviebuff.com’ or ‘MovieBuff’ to divert people looking for ‘MovieBuff’ to its website, [the infringing party] improperly benefits from the goodwill that the [trademark owner] developed in its mark.").

20. Although Respondent has recently removed its content from the "microsoft-office.2000.com" website, Respondent has the power to re-establish the website using any or all of its Infringing Domain Names at any time. Moreover, Respondent may use any or all of the Infringing Domain Names in more harmful ways.

21. Respondent has no legitimate interest in any of the Infringing Domain Names. Respondent has no connection or affiliation with Microsoft, and has not received any license or consent, express or implied, to use any of Microsoft’s trademarks or product names in a domain name or in any other manner.

22. Respondent clearly had notice of Microsoft’s ownership of the Microsoft trademark and product name "Microsoft Office 2000" when it registered the Infringing Domain Names because for the majority of time since registration of its domain names, its website has been devoted to almost exclusively to Microsoft Office 2000 and related Microsoft products. Also, since Microsoft began tracking Respondent’s activities on its website, Respondent has posted commercial advertisements and sold software products in a manner which created confusion regarding the source of the products. Thus, Respondent has never used the Infringing Domain Names in connection with a bona fide offering of goods and service. Microsoft is also informed and believes that none of the businesses or individuals using the Infringing Domain Names has ever been commonly or legitimately known as Microsoft Office 2000.

23. Nor are Respondent’s activities legitimate or fair uses of Microsoft’s trademarks or product names. See e.g., Universal City Studio, Inc. v. G.A.B. Enterprises, WIPO Case No. D2000-0416 (June 29, 2000). In Universal City Studio, the respondent registered the domain name "fieldofdreams" which was identical to the complainant’s product name for the well-known movie starring Kevin Costner. Similar to the present case, the respondent in that case established a website without permission, authorization or license at a domain name comprised of complainant’s trademarks and its site contained advertisements, included links to the complainant’s website and offered good for sale through third party websites. The ICANN panel found that because the domain name and links to complainant’s site were likely to cause confusion as to respondent’s relationship with complainant and because respondent had no other legitimate right to the domain name, respondent had no legitimate rights to the domain name. The Universal Panel also held that the fact that the goods were sold on a third party website instead of directly on respondent’s site was immaterial and did not change the conclusion that respondent was using the domain name for commercial purposes on its own website. The facts are even more egregious in the present case. Respondent here registered multiple infringing domain names. In addition to registering domain names comprised of Microsoft’s trademark, Respondent prominently used Microsoft ’s trademark and product name as its company name published on the website. Its website displayed several of Microsoft’s copyrighted and trademarked logos and images, many of which linked Microsoft’s official website, and thereby created confusion as to Respondent’s affiliation with Microsoft. Finally, Respondent posted a disclaimer only after Microsoft had contacted it (September 9, 1999 website contained no disclaimer – see Exhibit "E."). Respondent has no legitimate rights to the Microsoft Office 2000 product name and operates its website for commercial gain. Accordingly Respondent has no legitimate right to use any of the Infringing Domain Names.

24. Respondent registered the Infringing Domain Names in bad faith. Since Respondent’s "Microsoft-Office-2000.com" website is almost exclusively dedicated to Microsoft’s Office 2000 product and Respondent has no other obvious connection to the Microsoft Office 2000 product name, Respondent clearly knew of Microsoft and its Office 2000 product when it registered the Infringing Domain Names. Nevertheless, Respondent registered and began using the "Microsoft-Office-2000.com" domain name in an unlawful manner (see supra section C) for commercial gain.

25 While Microsoft is informed and believes that Respondent has never actively used the "Microsoft-Office2000.com" and "MS-Office-2000.com" domain names, Respondent registered them at the same time as it registered the "Microsoft-Office-2000" domain name (all three were registered on November 25 and 26, 1998). As explained above, it is clear that Respondent was fully aware that all three domain names were identical or confusingly similar to the Microsoft Marks at the time it registered them.

26. Independently, even in the unlikely event that Respondent genuinely did not know about Microsoft’s rights in the Microsoft trademark or in its Microsoft Office 2000 product name at the time of registration, Respondent’s failure to correct the situation after Microsoft subsequently advised Respondent of Microsoft’s right satisfies the bad faith registration requirement. Columbine JDS Systems, Inc. v. Jin Lu, eResolution Case No. AF-0137 (April 28, 2000)(while failure to make good faith trademark search before registering a domain name for a business venture is by itself negligent, failure to correct the situation once advised of another’s superior right in the name constitutes bad faith.)

27. Respondent has used the Infringing Domain Names in bad faith. After discovering the infringing websites, Microsoft contacted the Respondent and offered to reimburse Respondent ’s out-of-pocket expenses to transfer the Infringing Domain Names to Microsoft. Respondent refused to transfer any of its domain names unless Microsoft paid $5,000 to Respondent. This demand, which is far in excess of Respondent’s out-of-pocket registration fees, violates paragraph 4(b)(i) of the ICANN dispute policy. CBS Broadcasting, Inc v. Gaddoor Saidi, WIPO Case No. D2000-0243 (June 2, 2000)(offer to sell domain name in excess of out-of-pocket costs conclusively establishes that domain name was registered and was being used in bad faith under paragraph 4(b)(i)). Nevertheless, in an effort to resolve this matter amicably, Microsoft continued to attempt to correspond with Respondent on at least three separate occasions, but Respondent failed to respond and continued to use the Infringing Domain Names in an unlawful manner.

28. Respondent’s active use of the "Microsoft-Office-2000.com" domain name provides further evidence of bad faith. Respondent used the "Microsoft-Office-2000.com domain name and metatags containing Microsoft’s trademarks and product names to direct traffic away from Microsoft’s Websites and towards its own commercial website. Prior ICANN panels have found that this type of use – namely the use of a domain name comprised of a well-known trademark to attract users to the registrant’s website – constitutes a bad faith use of the domain name. Big Dog Holding, Inc. v. Frank Day, NAF Case No. FA00020000093554 (March 9, 2000)(holding that diversion of traffic to infringing websites by using well-known trademarks in domain names is bad faith use.

29. In addition, Respondent’s website contains large, prominent commercial banner advertisements and hyper-links to third party websites which offer various commercial products for sale. Copies of printouts from the web pages (and associated source code) located at the "Microsoft-Office-2000.com" website on three separate occasions are attached hereto as Exhibits "E", "F" and "G. These uses constitute commercial use of Microsoft’s marks and constitute bad faith. Monty and Pat Roberts, Inc. v. J. Bartell, WIPO Case No. D2000-0300 (June 13, 2000)(banner advertisements and/or offers for products and services for sale whether on the infringing website or on a hyper-linked website constitute impermissible commercial use); Nokia Corporation v. Nokiagirls.com aka IBCC, WIPO Case NO. D2000-0102 (April 18, 2000)(featuring banner advertisements and links to other websites offering products for sale on a website whose domain name contains a well-known traffic-creating trademark held to be a bad faith use). Thus, Respondent’s actions also fall within paragraph 4(b)(iv) of the Dispute Policy in that Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion between its website and Microsoft’s mark as to the source, sponsorship, affiliation, or endorsement of its website.

30. Even though to date Respondent has not actively used the "Microsoft-Office2000.com" and/or "MS-Office-2000.com" domain names, it has prevented Microsoft from registering these domain names in order to direct users to the Microsoft Websites and to advertise and sell its product on the Internet. In addition, Respondent’s active bad faith use of the "Microsoft-Office-2000.com" domain name and $5000 demand for all three domain names establishes its bad faith use of the inactive domain names.

31. Finally, Respondent’s registration of several domain names consisting of Microsoft’s trademark and product name, use of the Microsoft Marks in its metatags and calling itself "Microsoft-Office-2000" creates a strong and justified concern by Microsoft that Respondent will further misuse the Infringing Domain Names and the Microsoft Marks in a manner harmful to Microsoft and Internet users.

32. Following a written demand form Microsoft’s attorneys, in September of 1999, Gerry Grant, who is the administrative and billing contact for Respondent, contacted Microsoft’s counsel by phone. He claimed that he had spoken to a Microsoft product manager regarding Respondent’s website, but refused to identify the product manager. Microsoft later performed an internal investigation and could not confirm Mr. Grant’s story. Also during his phone conversation with Microsoft’s attorneys, Mr. Grant refused to transfer the Infringing Domain Names to Microsoft. In a later phone conversation, Mr. Grant informed Microsoft that Respondent would not transfer the Infringing Domain Names unless Microsoft paid $5,000 to Respondent. Respondent then ignored at least three separate efforts by Microsoft to resolve this matter informally, forcing Microsoft to initiate this action. While the websites at issue are currently not accessible, Respondent still maintains complete control over them, and based on Respondent’s past business practices and conduct with respect to the Infringing Domain Names and the use of "Microsoft-Office-2000.com" as its business name, Microsoft is justifiably concerned that, unless Respondent is compelled to transfer the Infringing Domain Names to Microsoft, there exists a strong likelihood that Respondent will resume its activities in capitalizing upon and diluting Microsoft’s marks, thereby confusing and frustrating Microsoft’s customers."

c. Remedies Requested

As for relief, Microsoft requests at Paragraph 33:

In accordance with Paragraph 4(b)(i) of the Policy, for the reasons described in Section 4 above, the Complainant requests the Administrative Panel appointed in this administrative proceeding to issue a decision that the domain names "Microsoft-Office-2000.com," Microsoft-Office2000.com" and MS-Office-2000.com" be transferred to Complainant.

d. Respondent’s Answer

Respondent has filed no answer, or any other document, with the Center.

 

5. Discussion and Findings

Paragraph 4 of the Policy directs that Microsoft must prove, with respect to the domain names in issue, each of the following:

(i) The domain names in issue are identical or confusingly similar to the Microsoft trademark, and

(ii) Respondent has no rights or legitimate interests in respect of the domain names, and

(iii) The domain names have been registered and are being used in bad faith.

Paragraph 4(b) of the Policy sets out four illustrative circumstances which, for purposes of Paragraph 4(a)(iii) above, shall be evidence of the registration and use of a domain name in bad faith.

Paragraph 4(c) of the Policy sets out three illustrative circumstances which, if proved by respondent, shall demonstrate respondent’s rights or legitimate interests to the domain name for purposes of Paragraph 4(a)(ii) above.

a. Identity or Confusing Similarity

Microsoft urges, and has the burden of proving, that the domain names in dispute are either identical to, or confusingly similar to, the Microsoft trademarks. Respondent’s failure to respond does not relieve Microsoft of its burden of proof on this element or on either of the other two elements of Paragraph 4(a) of the Policy. However, Respondent’s failure to deny any of Microsoft’s averments permits this panel to take Microsoft’s averments as true and to draw appropriate inferences.

On their faces, the domain names in issue incorporate the terms "microsoft" and/or "MS" a nickname for "microsoft". Identity is clear. In light of the truth and controlling nature of the facts set forth in the Complaint, paragraphs 10 through 32, the Panel finds that the domain names in issue are confusingly similar to the Microsoft trade marks.

b. Rights or Legitimate Interests

On this record, no challenge has been leveled with respect to (1) the validity of any Microsoft trademarks or service marks, (2) Microsoft’s rights in those marks with respect to Microsoft services and goods, (3) the global fame and goodwill associated with those marks, or (4) any fact averred by Microsoft as to promotion of the marks, use of the marks, and total sales of services and goods under the marks. Accordingly, such facts are found to be true.

No challenge has been leveled with respect to Microsoft’s averments as to registrant’s conduct.

In light of the foregoing, it is found that this record demonstrates that Respondent has no rights or legitimate interests vis-a-vis "microsoft-office-2000.com"

"microsoft-office2000.com" and/or

"ms-office-2000.com"

c. Registration and Use in Bad Faith

Registration of the domain name in issue in bad faith is a matter of the appropriate inferences to draw from circumstantial evidence. Each is to be proved by Microsoft.

The facts asserted by Microsoft in support of its position that Respondent’s registration was in bad faith are found in the Complaint in paragraphs 24 through 32. These facts are found to be true and as such demonstrate that Respondent has registered the domain names "microsoft-office-2000.com;" microsoft-office2000.com" and ms-office-2000.com" in bad faith.

d. Paragraph 4.c Factors

With respect to the domain name in issue, by failing to respond to the Complaint, Respondent has failed to prove any of the three circumstances set out in Paragraph 4(c) of the Policy, viz.:

(i) before any notice to Respondent of the dispute, Respondent’s use of or preparations to use the domain name were in connection with a bona fide offering of goods or services,

(ii) Respondent or a related entity has been commonly known by the domain name, and

(iii) Respondent is making legitimate noncommercial or fair use of the domain name in issue, "without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue."

As averred by Microsoft and properly inferred from the undisputed facts as to Respondent’s conduct, each of these three factors must be resolved in favor of Microsoft.

 

6. Decision

The panel has jurisdiction of this dispute. Respondent has received notice of the commencement of this proceeding, the Policy, the Complaint, and the consequences of Respondent’s default. Respondent has been afforded due process.

With respect to the request for transfer of the domain names at issue, the Panel decides that Microsoft has carried its burden of proving (a) the domain name in issue here are identical to or confusingly similar to the Microsoft marks, (b) Respondent has no rights and no legitimate interests in respect of the domain name in issue, and (c) the domain names in issue have been registered and used in bad faith by Respondent. Accordingly, the Panel requires that the registration of the domain names "microsoft-office-2000.com;" "microsoft-office2000.com" and "ms-office-2000.com" be transferred to Microsoft.

 


 

Gaynell C. Methvin
Sole Panelist

Dated: January 25, 2001

 

Источник информации: https://internet-law.ru/intlaw/udrp/2000/d2000-1568.html

 

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