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Arbitration and Mediation Center
Microsoft Corporation v. Modern Limited - Cayman Web Development
Case No. D2003-0919
1. The Parties
The Complainant is Microsoft Corporation, of Redmond, Washington, United States of America, represented by Arnold & Porter, United States of America.
The Respondent is Modern Limited - Cayman Web Development, George Town, Grand Cayman GT, United Kingdom of Great Britain and Northern Ireland.
2. The Domain name and Registrar
The disputed domain name <windowsmediaplayer.com> is registered with eNom. The Complaint initially sought relief in relation to <microsoftupdate.com> but the Complaint was amended as the latter domain name has now been transferred to the Complainant.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on November 19, 2003. On the same date, a Request for Registrar Verification was transmitted to the Registrar, eNom, which failed to submit a Verification Response. The Center was forced to make a WHOIS printout on November 24, 2003, which showed that the disputed Domain Name was registered with eNom Inc., that the Respondent, Modern Limited – Cayman – Web Development was the current registrant of the disputed Domain Name and the status of the registration was locked. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amendment to the Complaint on November 25, 2003. The Complaint as amended no longer sought relief in relation to <microsoftupdate.com> as this domain name has apparently been transferred to the Complainant by the 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 November 28, 2003. In accordance with the Rules, paragraph 5(a), the due date for Response was December 18, 2003. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on December 29, 2003.
The Center appointed Michael D. Pendleton as the sole panelist in this matter on January 6, 2004. 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
The Complainant is a large multinational company, which has become a "household name" in the field of computer software, Internet software, information and online services delivered via the Internet. WINDOWS MEDIA marks, in respect of international classes 9 and 42, have been registered as trademarks in many jurisdictions throughout the world as evidenced in Exhibit M to the Complaint.
Windows Media Player is a product of the Complainant which provides access
to music, movies, and news broadcasts inter alia, via computer. The Complainant
has established and maintains a website at "www.windowsmediaplayer.com"
which allows Internet users to download Windows Media Player and access associated
In February 2003, the Complainant discovered that the Respondent had registered the domain name <windowsmediaplayer.com>. The Internet site provides a search engine with links to various products including competitive products but excluding those of the Complainant. A search by the Complainant on November 18, 2003, of the "Whois" database, maintained by Tucows Inc and eNom, revealed the Respondent as the registrant.
5. Parties’ Contentions
Considerable detail is provided in the Complaint but in summary the Complainant’s contentions resolve as follows:
i. The Respondent’s use of <windowsmediaplayer.com> diverts computer users who intend to access the Complainant’s products when they type the domain name on their web browser. This is not a legitimate use, maintains the Complainant. Though not specifically mentioned by the Complainant, this could also presumably occur through use of a search engine by a user to access the Complainant’s products.
ii. The Respondent’s use of <windowsmediaplayer.com> is confusingly similar to the Complainant’s WINDOWS MEDIA trademarks in respect of the same or similar classes of goods and services in many jurisdictions throughout the world.
iii. The Respondent is engaged in a pattern of deception through its much documented practice of registering other company’s trademarks and this is indicative of bad faith on the part of the Respondent.
iv. The Respondent has no legitimate rights or interests in respect of the domain name. There is no possibility of innocent use here as the Complainant’s trademarks and goodwill associated with these trademarks are so well known.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
After reviewing the formal documents and evidence provided the Panel finds there is nothing in paragraph 5(e) of the Rules to prevent a determination of the Complaint given the failure of the Respondent to lodge a Response.
Pursuant to the paragraph 4(a) of the Policy the Complainant must establish:
i. The domain name is identical or confusingly similar to the Complainant’s trademarks;
ii. The Respondent has no rights or legitimate interests in respect of the domain name;
iii. The domain name was registered and is being used in bad faith.
A. Identical or Confusingly Similar
It is evident that a major strategy of the Respondent’s use of the domain name is to divert the - no doubt - very considerable amount of Internet traffic to its search engine when a user is intending to access the Complainant’s website. The panel so finds.
The Complainant has evidenced ownership of trademarks for WINDOWS MEDIA in classes 9 and 42 in many jurisdictions throughout the world. The use by the Respondent of "windowsmedia" in lower case with the additional word "player" and without intervals between the words is unlikely to displace confusion as to origin in most jurisdictions’ trademark jurisprudence. In addition, the Complainant has established a little over a year’s use of WINDOWS MEDIA in association with the product and website "www.windowsmediaplayer.com". In the light of the Complainant’s "household name" status in respect of Windows, the likelihood of confusion as to origin by the Respondent’s use of the domain name is considerably heightened. The panel finds sufficient likelihood of confusion.
B. Rights or Legitimate Interests
The Respondent has had every opportunity to file a Response. No such response has been received, no exceptional circumstances likely. Given the fame associated with the Complainant’s WINDOWS MEDIA trademarks, a claim of innocent use would be disingenuous. The Complainant has specifically repudiated any license, permission or acquiescence having been given to the Respondent. It follows that no right or legitimate interest is open on the evidence.
C. Registered and Used in Bad Faith
The Complaint goes a long way to establishing the inference that the Respondent and others with which it is claimed to be synonymous have engaged in widespread "cybersquatting". While in no way conclusive, paragraph 32 of the Complaint refers to six panel proceedings under the UDRP where the outcome was adverse to the Respondent. In fact, paragraph 33 claims the Respondent has registered more than 2,200 domain names many of which are identical or confusingly similar to world famous trademarks. The Complaint cites amongst a number of examples, <yamahadirtbike.com>, <nelson-mandela.com>, <pavarotti.com>, <landroverdiscovery.com>, and <harrypottermovie.com>.
Though the Complainant amended its Complaint in respect to the relief sought for the domain name <microsoftupdate.com> the evidence remains in the amended Complainant. The evidence is clear that the intention behind the use of that domain name is to "mousetrap" (see paragraph 21 of the Complaint) a user with a perpetual series of pop up windows. This is achieved by infecting a user’s computer with a "Trojan Horse" virus. The Complaint claims in paragraph 5 of the Amended Complaint that this constitutes a "pattern of infringing behaviour". The Panel is of the opinion that contemporaneous use of another of the Complainant’s domain names is relevant to a finding of bad faith.
The Complaint provides evidence that the Respondent uses an address for its domain name registration which belongs to Walkers, a reputable Cayman Islands law firm which has no association with the Respondent.
All of the above make a finding of bad faith, within the meaning of the Policy, compelling and the Panel so finds.
In the light of the above findings reasons and in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <windowsmediaplayer.com> be transferred to the Complainant.
Michael D. Pendleton
Date: January 13, 2004