WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
MICRO APPLICATION v. Private Registration - bmon, Telecom Tech Corp.
Case No. D2011-0731
1. The Parties
Complainant is MICRO APPLICATION of Paris, France represented internally.
Respondent is Private Registration - bmon of Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland and Telecom Tech Corp. of Panama City, Panama.
2. The Domain Name and Registrar
The Disputed Domain Name <wwwmicroapp.com> is registered with Bargin Register Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 28, 2011. On April 28, 2011, the Center transmitted by email to Bargin Register Inc. a request for registrar verification in connection with the Disputed Domain Name. On May 6, 2011, Bargin Register Inc. transmitted by email to the Center its verification response disclosing registrant and contact information for the Disputed Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on May 9, 2011 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on May 12, 2011.
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” or “UDRP”), 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 Respondent of the Complaint, and the proceedings commenced on May 16, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was June 5, 2011. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on June 6, 2011.
The Center appointed Richard W. Page as the sole panelist in this matter on June 14, 2011. 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
Complainant is also known as “Micro App” and is a French company created in 1981. Complainant is registered in the French Trade Register of Paris under no 321 525 032. Complainant is a leading publisher of PC utilities software, PC casual games, the number two photo editing software and video editing software in France.
Complainant also distributes its products in Benelux, Switzerland and other countries of the French-speaking Zone as well as worldwide, in foreign language (non-French) countries. Complainant sells or provides 1,320,000 software programs, 260,000 books, 938,000 stickers, photo papers and greeting cards and 475,000 Smartphone applications each year. Since February 2011, Complainant has been a wholly-owned subsidiary of Avanquest Software Group, which Group is a leading developer and publisher of cutting edge software available in more than 100 countries.
Complainant is the owner of several trademark and service mark registrations, including French Registration nº 00/3069983 MICROAPP.COM and European Registration nº 00/8876047 MICROAPP. The registrations include International, French and European registrations (the “MicroApp Marks”). In addition, Complainant maintains over 300 Micro Application branded websites, many of which re-direct to Complainant’s main website at “www.microapp.com”. The URL at which the website is hosted is “www.microapp.com”. The website is the main showroom of Complainant’s products, for both presentation of new products and follow-up on the back catalogue and content products. It also provides several free content tips, demo versions of software and free software tools. In addition, this website is being used for advertising, direct trade and electronic distribution worldwide and particularly in Europe. The website is also a corporate tool used to present Complainant’s business and to attract new partners, foreign authors, trading partners and distributors.
The Disputed Domain Name was registered on September 3, 2005.
5. Parties’ Contentions
Complainant contends that the Disputed Domain Name is identical with and confusingly similar to the MicroApp Marks because it incorporates the whole of the phrases “microapp.com” and “microapp.” Complainant further contends that the addition of the “www” in the Disputed Domain Name is not distinctive because “www” is a commonly known generic element in URL syntax.
Complainant alleges that Respondent has no rights or legitimate interest in the Disputed Domain Name. Complainant further alleges that the website to which the Disputed Domain Name resolves is for the purpose of “parking” the Disputed Domain Name using a series of sponsored links arranged by SmartName. Any pay-per-click revenues generated by these sponsored links do not constitute a bona fide offering of goods or services. Complainant further alleges that Respondent has never been commonly known by the Disputed Domain Name and is trying to misleadingly divert Internet users for commercial gain.
Complainant asserts that Respondent has registered and used the Disputed Domain Name in bad faith.
Complainant further asserts that Respondent had at least constructive knowledge of Complainant’s MicroApp Marks, because the Disputed Domain Name was registered years after the registration of the earliest of the MicroApp Marks. Complainant further asserts that Respondent for commercial gain has intentionally attempted to divert Internet users intended for Complainant’s website.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel as to the principles the Panel is to use in determining the dispute: “A Panel shall decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules, and any rules and principles of law that it deems applicable.”
A respondent is not obliged to participate in a domain name dispute proceeding, but if it were to fail to do so, asserted facts that are not unreasonable would be taken as true and the respondent would be subject to the inferences that flow naturally from the information provided by the complainant: Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441. See also Hewlett-Packard Company v. Full System S.a.S., NAF Claim No. FA 0094637; David G. Cook v. This Domain is For Sale, NAF Claim No. FA0094957 and Gorstew Jamaica and Unique Vacations, Inc. v. Travel Concierge, NAF Claim No. FA0094925.
Even though Respondent has failed to file a Response or to contest Complainant’s assertions, the Panel will review the evidence proffered by Complainant to verify that the essential elements of the claims are met.
Paragraph 4(a) of the Policy directs that Complainant must prove each of the following:
i) that the Disputed Domain Name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and,
ii) that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and,
iii) that the Disputed Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant contends that it has numerous registrations of the MicroApp Marks. These trademark registrations serve as prima facie evidence of Complainant’s ownership and the validity of the MicroApp Marks.
Prior UDRP decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive. Respondent has the burden of refuting this assumption. See, e.g., EAuto, L.L.C. v. Triple S. Auto Parts d/b/a Kung Fu Yea Enterprises, Inc., ICANN WIPO Case No. D2000-0047.
Complainant further contends that the Disputed Domain Name is identical with and confusingly similar to the trademark pursuant to the Policy paragraph 4(a)(i).
Complainant contends that the Disputed Domain Name is identical with and confusingly similar to the MicroApp Marks because it incorporates the whole of the phrases “microapp.com” and “microapp” with only the non-distinctive additional phrase “www.”
As numerous courts and prior UDRP panels have recognized, the incorporation of a trademark in its entirety is sufficient to establish that a domain name is identical or confusingly similar to a complainant’s registered mark. See Paccar Inc. v. Telescan Technologies, L.L.C., 115 F. Supp. 772 (E.D. Mich. 2000) (finding that <peterbuilttrucks.com>, <kenworthtrucks.com> and similar domain names are not appreciably different from the trademarks PETERBUILT and KENWORTH); Quixtar Investments, Inc. v. Dennis Hoffman, WIPO Case No. D2000-0253 (finding that QUIXTAR and <quixtarmortgage.com> are legally identical). The addition of other terms in the domain name does not affect a finding that the domain name is identical or confusingly similar to the complainant’s registered trademark.
The Panel notes that the entirety of the phrases “microapp” and “microapp.com” are included in the Disputed Domain Name. Respondent did not reply to Complainant’s contentions.
Therefore, the Panel finds that the Disputed Domain Name is identical with and confusingly similar to the MicroApp Marks pursuant to the Policy paragraph 4(a)(i).
B. Rights or Legitimate Interests
Complainant contends that Respondent has no rights or legitimate interest in the Disputed Domain Name pursuant to the Policy paragraph 4(a)(ii).
Paragraph 4(a)(ii) requires the Complainant to prove that the Respondent has no rights to or legitimate interests in the Disputed Domain Name. Once a Complainant establishes a prima facie showing that none of the three circumstances establishing legitimate interests or rights applies, the burden of production on this factor shifts to the Respondent to rebut the showing. The burden of proof, however, remains with Complainant to prove each of the three elements of Paragraph 4(a). See Document Technologies, Inc. v. International Electronic Communications, Inc., WIPO Case No. D2000-0270.
The Policy paragraph 4(c) allows three nonexclusive methods for the Panel to conclude that Respondent has rights or a legitimate interest in the Disputed Domain Name:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel finds that Complainant has sustained its burden of coming forward with proof that Respondent lacks rights to or legitimate interests in Disputed Domain Name. Respondent did not reply to Complainant’s contentions.
Therefore, the Panel finds that Respondent has no rights or legitimate interest in the Disputed Domain Name pursuant to the Policy paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Complainant contends that Respondent registered and is using the Disputed Domain Name in bad faith in violation of the Policy paragraph 4(a)(iii).
The Policy paragraph 4(b) sets forth four nonexclusive criteria for Complainant to show bad faith registration and use of domain names:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your web site or location or of a product
Complainant alleges that Respondent has intentionally attempted to attract Internet users for commercial gain by creating a likelihood of confusion. Respondent did not reply to Complainant’s contentions.
The Panel finds that this evidence is sufficient to establish the necessary element of bad faith under the Policy paragraph 4(b)(iv). Therefore, Respondent registered and used the Disputed Domain Name in bad faith pursuant to the Policy paragraph 4(a)(iii).
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Disputed Domain Name, <wwwmicroapp.com> be transferred to Complainant.
Richard W. Page
Dated: June 26, 2011