WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Microsoft Corporation v. Charilaos Chrisochoou
Case No. D2004-0186
1. The Parties
The Complainant is Microsoft Corporation, Redmond, Washington, United States of America, represented by Arnold & Porter, United States of America.
The Respondent is Charilaos Chrisochoou, Komotini, Greece.
2. The Domain Name and Registrar
The disputed domain name <microsoft-com.com> is registered with Melbourne IT trading as Internet Name Worldwide.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 11, 2004. On March 11, 2004, the Center transmitted by email to Melbourne IT trading as Internet Name Worldwide a request for registrar verification in connection with the domain name at issue. On March 11, 2004, Melbourne IT trading as Internet Name Worldwide 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. The Center verified that 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 March 17, 2004. In accordance with the Rules, paragraph 5(a), the due date for Response was April 6, 2004. The Respondent did not submit any response within the deadline. Accordingly, the Center notified the Respondent's default on April 7, 2004.
The Center appointed Peter G. Nitter as the sole panelist in this matter on April 22, 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.
The Center has received two responses to the Complaint from Respondent on April 26 and 29, 2004. The Panel has had the opportunity to read these late responses before making a final decision in the case.
4. Factual Background
Complainant manufactures, markets and sells computer software and related products and services, including products and services designed for use on the Internet, under its trademark MICROSOFT.
Complainant has registered the trademark MICROSOFT for a wide range of products and services throughout the world, including several registrations in the European Community, which includes Greece.
In connection with the MICROSOFT mark, Complainant has established Internet websites located at domain names comprised of the MICROSOFT mark, including <microsoft.com> and <microsoft.net>.
5. Parties' Contentions
The infringing domain name is identical or confusingly similar to Complainant's trademark MICROSOFT and website addresses incorporating the MICROSOFT mark.
Respondent has purposefully selected a domain name that wholly incorporates the MICROSOFT mark. According to previous panel decisions under the UDRP, the addition of a hyphen and the generic term ".com" is deemed insufficient to avoid confusion with a registered mark. The addition of the generic top-level domain name ".com" is moreover irrelevant when determining whether a disputed domain name is confusingly similar to a protected trademark.
Respondent has no legitimate interest in the domain name at issue. Respondent has no connection or affiliation with Microsoft and has not received any license or consent, express or implied, to use the MICROSOFT mark in a domain name or in any other manner.
Respondent has clearly been attempting to divert Internet users seeking a website or services related to Microsoft to its business. Previous administrative panels have determined that diverting Internet users to websites to increase Internet traffic and profit is not a bona fide or legitimate use. Respondent is not currently directing the domain name to an active website, which is not a legitimate use. Passive holding of a domain name has consistently been held by administrative panels as insufficient to establish either legitimate interests or bona fide use.
Respondent has registered and used the contested domain name in bad faith.
Respondent has registered the contested domain name with knowledge of Complainant's rights in the MICROSOFT mark and the obvious similarity between MICROSOFT and the <microsoft-com.com> domain name. It is simply inconceivable that Respondent was unaware of Microsoft's rights in the MICROSOFT mark, which has achieved worldwide fame.
Respondent's bad faith use is evidenced by his initial use of the <microsoft-com.com> domain name in connection with his commercial website. This use was an obvious attempt to draw a connection with Microsoft.
The Respondent did not reply to the Complainant's contentions within the due date for Response on April 6, 2004. In its late responses of April 26 and 29, 2004, the Respondent has however admitted that he is familiar with the MICROSOFT trademark, and he has not claimed any right or legitimate interests in such trademark. Respondent explains that the disputed domain name was registered by another person with access to Respondent's computer, without Respondents knowledge.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name is not identical to Complainant's trademark MICROSOFT, and the question is thus whether there is a confusing similarity between the two.
The trademark MICROSOFT is world famous, and will be known to a vast majority of Internet users throughout the world. The contested domain name incorporates in its entirety Complainant's famous and distinctive trademark MICROSOFT.
Complainant's trademark is clearly the most distinctive part of the contested domain name. The term ".com" will, when used in domain names, be associated with the generic top level domain, and have very little distinctiveness. Previous Panel decisions under the UDRP have concluded that the addition of a generic term and/or a hyphen is not sufficient to prevent confusing similarity when the domain name contains a well-known trademark. The Complainant has, inter alia, made reference to WIPO Cases Nos. D2002-0215 and D2001-0055. The addition of the term ".com" is thus in no way sufficient to prevent the risk of unfounded identity between the contested domain name and Complainant's trademark.
Previous Panel decisions under the UDRP have furthermore concluded that the generic top level domain denominator is irrelevant when determining whether a disputed domain name is confusingly similar to a protected trademark. The Complainant has, inter alia, made reference to WIPO Case No. D2000-0416.
The Panel finds it most likely that a majority of the users of Internet immediately will recognise the trademark, and assume that the domain name is connected to an Internet website owned, controlled or endorsed by Complainant. The panel thus finds that the contested domain name is confusingly similar to Complainant's trademark MICROSOFT.
B. Rights or Legitimate Interests
Complainant has informed that Respondent has no connection or affiliation with Complainant, and has not received any license or consent, express or implied, to use the MICROSOFT mark in a domain name or in any other manner. If such connection, affiliation or consent existed, it would be easy for Respondent to substantiate this. Respondent has however not provided any response in the present case, and none of Complainant's assertions have been contested by Respondent.
As a result, the Complainant has established prima facie that the Respondent has no rights or legitimate interests in the domain name, as there is no evidence allowing the Panel to conclude that any circumstances listed at paragraph 4(c) of the ICANN Policy apply to Respondent's situation.
The Panel may not draw any direct conclusions from the fact that Respondent has failed to contradict the Complainant's assertions by detailing any legitimate rights of interests it might have had. As shown in previous cases under the UDRP such as WIPO Case No. D2000-1080 and WIPO Case No. D2000-0848, under certain circumstances a negative inference may however be drawn from Respondent's lack of justification.
Complainant's trademark is famous. Complainant has provided evidence that Respondent has directed the domain name at issue to an Internet website offering computer-related products. The Panel finds it unlikely that Respondent would have any rights or legitimate interests in the use of a domain name that is confusingly similar to such a famous trademark in connection to the offering of such products.
The Respondent is not currently making an active use of the domain name. According to previous panel decisions under the UDRP, the passive holding of domain names has however not been deemed sufficient to establish legitimate interests or bona fide use of a domain name.
Neither did Respondent claim to have any rights or legitimate interest in the use of the domain name at issue or the MICROSOFT mark in his late Response.
For the above reasons, the Panel concludes that the Respondent has no rights or legitimate interests in the domain name.
C. Registered and Used in Bad Faith
In light of the fame and distinctiveness of Complainant's trademark MICROSOFT, the Respondent has undoubtedly been aware of this mark when he decided to register the domain name at issue. In his late Response, Respondent has also confirmed his awareness of the trademark MICROSOFT.
The Panel finds that Respondent's allegation that the registration of the domain name at issue was carried out by another person with access to Respondent's computer, cannot prevent a finding of bad faith on the part of Respondent. A third party that has been granted access to Respondent's computer, e-mail account or other means that sufficient to register a domain name in the name of Respondent, will have to be identified with Respondent in relation to the Policy and the Rules. It would be virtually impossible for a Complainant to meet such allegations, and if Respondent should not be held responsible, this could potentially undermine the Policy and the Rules.
The domain name at issue has been formed by only adding "-com" to Complainant's registered mark MICROSOFT and domain name <microsoft.com>, and one can therefore infer that the motivation was to exploit user confusion as to source, sponsorship, affiliation or endorsement of Complainant, alternatively to exploit possible mistyping by Internet users when trying to reach Complainant's Internet web page "www.microsoft.com."
As a result of the above, the Panel finds that the registration and use of the domain name at issue appears to be an intentional attempt to capitalize upon a likely confusion with Complainants' trademark and domain name MICROSOFT.
In his late Responses, Respondent has not contested Complainant's allegations that the domain name at issue was registered without rights and legitimate interests, and was registered and has been used in bad faith. On the contrary, it is the Panel's impression that Respondent dissociate himself from the registration of the domain name and agrees that this is in conflict with Complainant's interests and the Rules.
For the above reasons, the Panel concludes that the Respondent has registered and used the domain name at issue in bad faith.
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, <microsoft-com.com> be transferred to the Complainant.
Peter G. Nitter
May 10, 2004