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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Microsoft Corporation v. SysWebSoft S.R.L and Martin Caetano
Case No. D2003-0528
1. The Parties
The Complainant is Microsoft Corporation, C/O Peter Becker, of Redmond, Washington, United States of America, represented by Arnold & Porter, United States of America.
The Respondents are SysWebSoft S.R.L. and Martin Caetano of Montevideo, Uruguay.
2. The Domain Name and Registrar
The disputed domain name <descargasmsn.com> is registered with Go Daddy Software.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 3, 2003. On July 4, 2003, the Center transmitted by email to Go Daddy Software a request for registrar verification in connection with the domain name at issue. On July 7, 2003, Go Daddy Software transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact, and notifying of an additional Respondent, Martin Caetano. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on July 12, 2003, that added the Respondent Martin Caetano. For simplicity of expression, both Respondents SysWebSoft S.R.L and Martin Caetano will be identified hereinafter in the singular as "Respondent." The Center verified that the Complaint together with the amendment to the Complaint, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 18, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was August 7, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 8, 2003.
The Center appointed Mark Min-Jen Yang as the Sole Panelist in this matter on August 19, 2003. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
4. Factual Background
Based on uncontroverted contentions by the Complainant (see Section 6, Discussion and Findings below), the Panel accepts the following facts.
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 and Internet services for use in the workplace, home, and education.
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.
In connection with these Internet services, Microsoft owns, among other trademarks, the world famous trademark "MSN" and variants (the "MSN MARKS"). Microsoft has obtained trademark registrations in numerous countries for the MSN MARKS in several classes of goods and services, including United States registrations for use in connection with: (i) telecommunication and electronic mail services; (ii) computer programs for transmitting and receiving electronic mail and for accessing global communications networks; (iii) providing bulletin board services and chat services by means of a global communications networks; (iv) providing computerized on-line retail services in the field of general merchandise such as books, clothing, cars, computers, software, gifts, groceries and food, toys, music, electronics, and games; providing retail shopping information, including retailer guides and gift finders, via a global communication network; (v) and providing information via a global communications network in a wide variety of fields including news, entertainment, travel, investments, sports, computers, parenting and health (the "MSN GOODS AND SERVICES").
Details of some of the trademark registrations and applications for the MSN MARKS in the United States, Uruguay, Chile and Argentina, are listed in the Complaint (at page 5).
5. Parties’ Contentions
The Complainant alleges that the domain name is confusingly similar to the MSN MARKS in which the Complainant has rights, that the Respondent has no rights to or legitimate interests in the domain name, and that the domain name is registered and being used in bad faith by the Respondent. The Complainant requests the transfer to it of the domain name.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
One requirement of fundamental due process is that a Respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a Respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).
In this case, the Panel is satisfied that the Center took all steps reasonably necessary to notify the Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of the Respondent to furnish a response to the Complaint is not due to any omission by the Center. There is sufficient evidence, in the case file provided by the Center, for the Panel to conclude the Center discharged its obligations under Rules, paragraph 2(a) (see Procedural History, supra).
Where there is default, under Rule 14(a), "the panel shall proceed to a decision on the complaint," and under the Rule 14(b), "the panel shall draw such inferences [from the default] as it considers appropriate." Furthermore, Rule 15(a) provides that a "panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate." Since the Respondent has not submitted any material and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made, and the evidence supplied, by the Complainant.
Paragraph 4(a) of the Policy sets forth three elements to be established by a Complainant to merit a finding that a Respondent has engaged in abusive domain name registration, and to obtain relief. Each of the following three elements must be established by a Complainant:
(a) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(b) Respondent has no rights or legitimate interests in respect of the domain name; and
(c) Respondent’s domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Based on the uncontroverted evidence submitted by the Complainant and the facts and conclusions contended for (see Factual Background, above), the Panel finds that:
(a) the Complainant has spent very significant monies to promote its MSN GOODS AND SERVICES in association with the MSN MARKS;
(b) the Complainant operates its website "www.msn.com" which enjoys enormous worldwide popularity; and
(c) the MSN MARKS, in association with the MSN GOODS AND SERVICES, are the subject of trademark registrations in the United States of America and elsewhere.
The Panel finds that the Complainant has significant rights in its MSN MARKS in the United States of America and elsewhere, in association with the MSN GOODS AND SERVICES.
The Panel finds that the difference between the MSN MARKS and the domain name, is of insufficient legal significance to distinguish the domain name from the MSN MARKS in the context of the World Wide Web. According to the Complaint, "descargas MSN" in Spanish means "download MSN" in English.
Accordingly, the Panel finds that the domain name is confusingly similar to the MSN MARKS in which the Complainant has rights.
B. Rights or Legitimate Interests
Respondent has submitted no evidence, generally, and none under paragraph 4(c) of the Policy in particular, to support a finding of it having any rights or legitimate interests in respect of the domain name. This is sufficient for the Panel to accept the Complainant’s contention that the Respondent has no rights or legitimate interests.
Furthermore, based on the uncontroverted evidence submitted by the Complainant and the factual and legal conclusions contended for (see Factual Background, above), the Panel accepts in large measure, the evidence and contentions of factual and legal conclusions set out in the Complaint. In particular, the Panel finds that conclusions (a), (b) and (c) under 6A above, were likely known by the Respondent when it registered the domain name and that makes it very difficult, even if it had submitted evidence, for it to show it had rights or legitimate interests in the domain name.
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name.
C. Registered and Used in Bad Faith
Based on the uncontroverted evidence submitted by the Complainant and the factual and legal conclusions contended for (see Factual Background, above), the Panel accepts in large measure, the evidence and contentions set out in the Complaint. In particular, the domain name was registered in bad faith because it was done with knowledge of the Complainant’s trademark registrations and its use of MSN MARKS in association with its MSN GOODS AND SERVICES. Also in particular, the domain name is being used in bad faith because (according to the Complaint) the use is to divert Internet traffic to a website for the direct or indirect commercial gain presumably of the Respondent, all with a false association to the Complainant and its MSN MARKS.
The Panel finds that the domain name has been registered and is being used in bad faith by the Respondent.
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <descargasmsn.com> be transferred to the Complainant.
Mark Min-Jen Yang
Dated: August 25, 2003