WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Microsoft Corporation v. Webbangladesh.Com
Case No. D2002-0769
1. The Parties
The Complainant in this administrative proceeding is Microsoft Corporation ("Microsoft"). Microsoft is a Washington corporation with its principal place of business in Redmond, Washington and is located at One Microsoft Way, Redmond, Washington, 98052, United States of America, ("USA").
The Respondent is Webbangladesh.com for Microsoftbangladesh.com company, 11432 South Street #276, Cerritos, CA 90703, USA. As Complainant points out, additional contact information is supplied for Respondent on the Domain Name, identified below. That information identifies Microsoft Corporation Ltd., 8/6 Segun Bagicha, Dhaka-1000, Bangladesh.
2. The Domain Name and Registrar
The domain name in dispute is <microsoftbangladesh.com> (the "Domain Name"). The registrar with which the domain name is registered is eNom, Inc., 16771 NE 80th Street, Suite #100, Redmond, WA 98052 USA (the "Registrar").
3. Procedural History
The WIPO Arbitration and Mediation Center (the "Center") received the Complainant’s Complaint by e-mail on August 16, 2002, and in hardcopy on August 20, 2002. On August 19, 2002, the Center sent the Complainant an Acknowledgement of Receipt.
Also on August 19, 2002, the Center sent to the Registrar a Request for Registrar Verification. Two days later, on August 21, 2002, the Registrar transmitted to the Center a Registrar Verification Response confirming that the Domain Name was indeed registered with the company, that the Respondent is the current registrant of the Domain Name, and that the status of the Domain Name is "locked."
The Center completed a Formalities Compliance Review on August 22, 2002, and verified that the Complaint satisfied the formal requirements of the ICANN Uniform Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Dispute Resolution Policy (the "Uniform Rules"), and the Supplemental Rules for Uniform Domain Dispute Resolution Policy (the "WIPO Supplemental Rules"). Complainant made the required payment to the Center. Upon independent review, the Panel also finds that the Complaint satisfies the formal requirements of the Policy, the Uniform Rules and the Supplemental Rules.
On August 22, 2002, the Center transmitted to the parties, with copies to the Registrar and ICANN, a Notification of Complaint and Commencement of Administrative Proceeding, setting a deadline of September 11, 2002, by which Respondent could file a Response to the Complaint.
Having received no Response from Respondent, the Center sent the parties a Notification of Respondent Default on September 13, 2002.
The Center invited Andrew S. Mansfield to serve as the Panelist. On September 20, 2002, after receiving Mr. Mansfield’s Statement of Acceptance and Declaration of Impartiality and Independence, the Center transmitted to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date (October 4, 2002). The Panel finds that the Administrative Panel was properly constituted and appointed in accordance with the Uniform Rules and the WIPO Supplemental Rules.
The language of this proceeding is English.
4. Factual Background
It is undisputed that Microsoft possesses exclusive rights in the world-famous trademark Microsoft. Microsoft is an exceptionally well known and recognized worldwide provider of computer software and related computer products and services, including products for use on the Internet and for developing Internet software, and online services and information delivered via the Internet. 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.
Microsoft offers these goods and services to the public under the registered trademark Microsoft. The mark is registered with the United States Patent and Trademark Office under numerous classes. The Panel has reviewed the registrations submitted by Complainant and is satisfied that Complainant possesses numerous United States and international registrations.
Microsoft has spent vast amounts of money in promoting and advertising the distinctive and well known Microsoft mark. It is a world-famous mark. It is perhaps one of the most recognized international trademarks in existence.
Microsoft operates numerous websites, including <microsoft.com> and <microsoft.net>. Microsoft also provides and makes available localized or regional websites. The regional website that serves Bangladesh is "microsoft.com/India."
Respondent recently deployed a website at the Domain Name that identifies itself as the Microsoft Bangladesh Corporate Office and contains various Microsoft trademarks, including the use of the word mark Microsoft. The Respondent even has placed "© Microsoft Corporation, All Rights Reserved" on the bottom of the Domain Name.
Respondent seeks enrollees on and through the Domain Name and asks such enrollees to become Microsoft franchisees. The Domain Name contains numerous links to actual information on the Microsoft websites.
5. Parties’ Contentions
Complainant alleges that Respondent is engaged in a fraudulent scheme of taking money from individuals in exchange for promises of access to Microsoft training, products, development and bank loans. Such fraudulent promises evidence bad faith.
Complainant further alleges that the Domain Name is identical or confusingly similar to the Microsoft mark because it contains the word Microsoft. Further, Respondent has no legitimate interests in the Microsoft mark.
Respondent filed no Response.
6. Discussion and Findings
Complainant must prove three distinct elements in order to prevail on its claim for transfer of the Domain Name. These elements are set forth in Paragraph 4(a) of the Policy:
- The Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- The Respondent has no rights or legitimate interests in respect of the Domain Name; and
- The Domain Name was registered and is being used in bad faith.
(A) Identity or Confusing Similarity of Domain Name and Trademark
The evidence shows that the Domain Name is identical to Complainant’s mark, differing only in the addition of the geographic description "Bangladesh" to the Microsoft mark. The Domain Name bears an exceptional and confusing similarity to the Microsoft mark.
(B) No Legitimate Interest in the Domain Name
By failing to submit a Response, Respondent provides no evidence that it has any rights whatsoever in the Domain Name. The Panel, as required, has conducted an independent review of the website deployed at the Domain Name and finds that Respondent has no rights or legitimate interest in the mark Microsoft. It appears that Respondent has intentionally copied the Microsoft look and feel and engaged in massive and unauthorized use of the Microsoft mark for the very purpose of creating consumer confusion and furthering a fraudulent scheme whereby enrollees at the Domain Name expect benefits from Complainant.
(C) Bad Faith Registration and Use of the Domain Name
Paragraph 4(b) of the Policy sets forth four examples of bad faith, which are not exclusive, but which "shall be evidence of registration and use of a domain name in bad faith." Those designated may be summarized as:
- Evidence that the purpose of registration is to sell, rent or transfer the domain name to the Complainant for an amount in excess of out-of-pocket expenses; or
- Evidence that the registration of the domain name was to prevent the owner of the trademark or the service mark from using the domain name, coupled with a pattern of such conduct; or
- Evidence that registration and/or use is primarily meant to disrupt the business of a competitor; or
- Intentional utilization, for commercial purposes, of the likelihood of confusion stemming from the domain name’s use or deployment.
This case presents a clear example of the last element. Respondent has intentionally utilized the Microsoft mark for the commercial purpose of obtaining funds from enrollees at the Domain Name by hoping for and counting on the creation of consumer confusion regarding the sponsorship of the Domain Name.
For all of the foregoing reasons, it is the decision of the Panel that the Complainant has proved the essential elements of a claim. The Complainant’s claim for transfer of Domain Name is therefore granted.
Andrew S. Mansfield
Dated: October 4, 2002