NATIONAL
ARBITRATION FORUM
DECISION
Microsoft Corporation v. Konstantinos Zournas a/k/a Konstantinos
Claim Number: FA0710001093928
PARTIES
Complainant
is Microsoft Corporation (“Complainant”),
represented by Molly Buck Richard,
of Richard Law Group, Inc.,
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <microsoftword.org>, <microsoftexcel.org>, <microsoftclipgallery.com>, <windowshosting.info>, <windows.info>, and <mywindows.org>, registered with Moniker Online Services, Inc., Go France Domains, Inc., and A Mountain Domains, Inc.
PANEL
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge, has no known conflict in serving as Panelist in this proceeding.
Carol M. Stoner, Esq., as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 12, 2007; the National Arbitration Forum received a hard copy of the Complaint on October 15, 2007.
On October 15, 2007, Moniker Online Services, Inc. and A Mountain Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <microsoftexcel.org>, <microsoftclipgallery.com>, <windowshosting.info>, <windows.info>, and <mywindows.org> domain names are registered with Moniker Online Services, Inc. and A Mountain Domains, Inc. and that the Respondent is the current registrant of the name. On October 23, 2007, Go France Domains, Inc. confirmed by e-mail to the National Arbitration Forum that the <microsoftword.org> domain name is registered with Go France Domains, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc., Go France Domains, Inc., and A Mountain Domains, Inc. has verified that Respondent is bound by the Moniker Online Services, Inc., Go France Domains, Inc., and A Mountain Domains, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 24, 2007, Complainant, upon the request of the National Arbitration Forum, corrected deficiencies in its original Complaint, by amending same so as to more completely name the Respondent, by linking the names <Konstantinos Zournas> and <Konstantinos>, i.e., Konstantinos Zournas a/k/a Konstantinos.
On October 24, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of November 13, 2007 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@microsoftword.org, postmaster@microsoftexcel.org, postmaster@microsoftclipgallery.com, postmaster@windowshosting.info, postmaster@windows.info, and postmaster@mywindows.org by e-mail.
A timely Response was received and determined to be complete on November 12, 2007.
On November 16, 2007, Complainant submitted a timely Additional Submission that was received and determined to be complete.
On November 20, 2007, Respondent submitted a timely Additional Submission that was received and determined to be complete.
On November 25, 2007, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Carol M. Stoner, Esq., as Panelist.
RELIEF SOUGHT
Complainant requests that the domain names be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends as follows:
Since 1975, Microsoft has manufactured and sold computer software and related products and services, such as computer operating systems, client server applications, platform and development tools, online information and entertainment services and electronic commerce services. Microsoft is the owner of more than 30 trademarks and service marks registered on the Principal Register of the United States Patent and Trademark Office (“USPTO”) for the trademark MICROSOFT and is the owner of more than 500 trademark and service mark applications and registrations for the mark MICROSOFT throughout the world, including in Greece (collectively, the “MICROSOFT mark”). A chart listing these and other worldwide registrations for the WINDOWS mark is included as Exhibit H to the Complaint.
The mark MICROSOFT was first used by Complainant in commerce at least as early as 1975, was continuously used thereafter, and is still in use on, or in connection with, Complainant’s goods and services, and is in use in advertising for such goods and services, throughout the world.
According to surveys by Business Week and Interbrand Corp., MICROSOFT has been the second most valuable brand in the world from 2004 to the present, and in 2006, MICROSOFT was voted the top brand in the world according to a survey by market research firm Millward Brown. Additionally, the MICROSOFT mark has been found by Panelists of the National Arbitration Forum and WIPO to be an internationally famous and distinctive mark. See, for example, Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum, Feb. 20, 2007); and see also Microsoft Corp. v. Thompson, D2004-1097 (WIPO April 14, 2005) (“Several previous panels operating under the jurisdiction of the Policy have concluded that the Complainant’s MICROSOFT trademark is internationally famous. The Panel readily subscribes to these previous panels’ findings.”).
Complainant also contends that Complainant owns various domain name registrations incorporating the MICROSOFT mark such as <microsoft.com> and <microsoft.net> (collectively “the Microsoft Websites”). The Microsoft Websites allow computer users throughout the world to access information regarding Microsoft and its products and services.
Microsoft’s trademarks include the
internationally known WINDOWS trademark (the “WINDOWS mark”) which was used at
least as early as 1983, and
has used the mark continuously since then. Said mark is now well
known to computer users, as well as the general public. Microsoft has
registered the WINDOWS trademark with the United States Patent and Trademark
Office, in the Respondent’s stated location of
In September 1995, Complainant registered the domain name <windows.com> through which it operates a web site (redirected through Complainant’s own <microsoft.com> site) offering information on the various WINDOWS products and services.
For more than 20 years, Microsoft
has invested considerable time, effort and money in advertising and promoting
its WINDOWS products and services throughout the
At least one WIPO panel has found the WINDOWS mark to be a famous mark. Microsoft Corp. v. lee, D2004-0991 (WIPO Jan. 26, 2005) (“The panel finds that this trademark has so extensive a common law reputation that it qualifies as a famous mark.”).
Complainant is also the owner of the registered mark EXCEL, U.S. Registration No. 2,942,050 which has been in use by Complainant since 1985.
Complainant bases the Complainant on the following factual and legal grounds:
The domain names <microsoftword.org>, <microsoftexcl.org> and <microsoftclipgallery.com> are confusingly similar to Complainant’s famous
MICROSOFT mark, which was used and registered as a trademark for more than 30 years prior to Respondent’s registration of the disputed domain names.
Respondent’s domain names <microsoftword.org>, <microsoftexcl.org> and
<microsoftclipgallery.com> incorporate Complainant’s famous MICROSOFT mark in its entirety. The first two contain the MICROSOFT mark and add the names of two of Complainant’s software programs, Word and Excel (which is a registered trademark as noted above) and the common URL suffix “.org,” and the third contains the MICROSOFT mark with the common terms “clip gallery” and the most common URL suffix “.com.”
The domain names <windows.info>, <windowshosting.info> and <mywindows.org> are confusingly similar to Complainant’s WINDOWS Mark, which was used and registered and became famous for the designated products and service for more then 20 years prior to Respondent’s registration of the disputed domain name. Respondent’s domain names <windows.info>, <windowshosting.info> and <mywindows.org> incorporate Complainant’s famous WINDOWS mark in its entirety, with the exception of the common URL suffixes “.info,” and “.org,” and with the exception of the common descriptive terms “hosting” and “my.”
Complainant states that Registrant is not commonly known by the name “Microsoft; or “Windows,” and in fact the WHOIS records list the Registrant as Knostantinos Zournas a/k/a Konstantinos. Respondent registered and is using the domain names featuring Complainant’s famous MICROSOFT and WINDOWS trademarks to attract internet users to its parked web sites for its own commercial gain. Respondent is using <microsoftclipgallery.com> and <microsoftword.org> at parked sites with Sedo Parking that have no content. Further, Complainant has not authorized or licensed the Respondent to use either mark in this case.
Complainant contends that Respondent registered the disputed domain names in bad faith, in that Respondent was unquestionably familiar with the famous marks, and intentionally adopted the names to create an association with Complainant’s products and services, for the purpose of drawing traffic to its own sites.
Respondent contends as follows:
Respondent does not deny that the following domain names: <microsoftword.org>, <microsoftexcel.org> and <microsoftclipgallery.com> are identical to the trademarks of Microsoft, and thus consents to the transfer of said names to Complainant.
Respondent contends that the domain names <window.info> and <mywindows.org> contain the term “windows” but also claims that the term “windows” is a generic dictionary term. Respondent contends that Complainant’s registration of the WINDOWS trademarks does not give Complainant an absolute monopoly or even an unfettered right to use the names. Respondent states that the word “windows” is subject to substantial third-party use, and is unaffiliated with the Complainant.
Respondent states that the domain <windowshosting.info> is identical to the Complainant’s trademark as the domain name is used as a redirection to Respondent’s web hosting company that is reselling UNIX software based and Windows software based website internet hosting. Respondent, nevertheless, maintains rights in respect to this domain name.
Respondent claims rights and/or legitimate interests in respect of the domain name <windows.info> which was registered by Respondent on July 13, 2002. Since that time, <windows.info> has been used by Respondent as a website that contains photographs of windows from various buildings located in the Greek islands and other locations. Respondent claims that this is a legitimate non-commercial use of the domain name <windows.info> without intent for commercial gain or to misleadingly divert consumers, or to tarnish Complainant’s trademark.
Respondent contends that it has used the domain name <windowshosting.info> in connection with a bona fide offering of services. The subject name is used as a redirection to Respondent’s web hosting company that is reselling UNIX based and Windows based website internet hosting. Respondent’s company, Bluepixel.gr, has been operating since 2001, and provides web design, web hosting and domain registration services.
Respondent state that the disputed domain names <windows.info> and <mywindows.org> were registered to be used as a windows photography website, and were never offered for sale to Complainant. Respondent has not registered these domain names to prevent Complainant from using the name “windows,” nor is Respondent a competitor of Complainant, and did not register the disputed names in order to disrupt the business of Complainant. Respondent contends that the domain name <windowshosting.info> was not registered or used for the purpose of selling the name, nor to prevent Complainant from using the name “windows.”
Respondent states that Respondent did not make any use of the domain names <microsoftword.org>, <microsoftexcel.org> nor <microsoftclipgallery.com>. Respondent consents to the transfer of these names from Respondent to Complainant.
C. Additional Submissions
Complainant, in its Additional Submission, contends as follows:
Respondent has changed the servers for the complained of domain names, to display different content from the way the pages on those sites appeared when the Complaint was filed with the Forum, in an attempt to fool the Panel into believing that his registration and use of these domains was not in bad faith.
Complainant continues to assert that the disputed domains <windows.info> and <mywindows.com> are identical or confusingly similar to Complainant’s famous WINDOWS marks, despite Respondent’s arguments that these domains contain the generic term “windows.” Complainant continues to assert that multiple Panels have recognized Complainant’s rights to the trademark WINDOWS.
Complainant takes note of Respondent’s concession that the domain name <windowshosting.info> is identical to Complainant’s trademark. Complainant states that this concession, as well as Complainant’s registration and extensive use of the WINDOWS marks, makes it clear that Complainant’s rights in the mark are not lost due to Respondent’s charges of the mark being generic.
Complainant continues to assert that Respondent has no rights or legitimate interest in the domain names, in that Respondent’s arguments, that the websites <windows.info> and <mywindows.org> contain photographs of windows from various buildings on the Greek islands, are not credible. Complainant states that these sites were used by Respondent, at least as early as March 7, 2007, in connection with a parked site at Sedo that contained links to suppliers of computer software, for which Respondent was receiving revenues.
Complainant asserts that the servers for <windowshosting.info> domain were set at NS1.PARKED.COM as of the filing of the Complaint, and subsequent to the filing (as shown in Complainant’s Exhibit 7 to Additional Submission), and that Respondent changed the servers for this domain to NS1HOST.COM.
Complainant also continues to assert that Respondent registered and is using the disputed domains in bad faith, in that at the time of the filing of the Complaint, Respondent was using the <windows.info> and <mywindows.org> domain names for a parked site that featured links to various computer related web sites with links to “Windows,” “Software,” “Microsoft Windows NT” and others, as well as using <windowshosting.info> for a parked site that features links to various computer hardware and hosting related websites. Complainant asserts that this use of the domain names in parked sites is bad faith.
Respondent in its Additional Submission, contends as follows:
With regards to ICANN Policy ¶ 4(a)(i) and ICANN Policy ¶ 4(a)(iii), Respondent states that Complainant has not provided any new credible evidence in its Additional Submission and therefore, Respondent refers the Panel to the material presented in its original Response.
Respondent, however, responds to Complainant’s claim in its Additional Submission that Respondent presented no facts to support its claim that Respondent has rights or legitimate interests, in respect of the disputed domain names, in accordance with ICANN Policy ¶4(a)(ii). Respondent states that it provided archival records from the Internet Archive for the domain name <windows.info> dating from 2002 up to 2005.
Respondent states that the appended exhibits indicating use of Fast Counter since 2002 on the domain <windows.info> is proof that the domain was used as a website providing photographs of building windows.
Finally, Respondent asserts, per Exhibit 9, that <windows.info> has been active on Respondent’s server “host.info” since October 01, 2005, which was the date that Respondent changed servers.
FINDINGS
1. The domain names registered by Respondent, that is, <microsoftword.org>, <microsoftexcel.org>, <microsoftclipgallery.com>, <windowshosting.info>, <windows.info>, and <mywindows.org> are identical or confusingly similar to trademarks or service marks in which Complainant has rights.
2. Respondent has no rights or legitimate interests in respect of these domain names.
3. These domain name have been registered and are being used in bad faith.
DISCUSSION
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) instructs this Panel to “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.”
Paragraph 4(a) of the Policy requires that the Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
Identical and/or Confusingly Similar
Complainant asserts rights in the MICROSOFT and WINDOWS marks. Complainant has submitted evidence of numerous trademark registrations with several trademark authorities around the world. In particular, Complainant submits evidence of a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the MICROSOFT mark (Reg. No. 1,200,236 issued July 6, 1982) and the WINDOWS mark (Reg. No. 1,875,069 issued January 24, 1995). The Panel finds that Complainant’s trademark registrations sufficiently establish Complainant’s rights in the marks pursuant to Policy ¶ 4(a)(i). See Lockheed Martin Corp. v. Hoffman, FA 874152 (Nat. Arb. Forum Jan. 31, 2007) (finding that the complainant had sufficiently established rights in the SKUNK WORKS mark through its registration with the USPTO); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Each of the <microsoftword.org>, <microsoftexcel.org>, <microsoftclipgallery.com>, <windowshosting.info>, and <mywindows.org> domain names contain Complainant’s mark in its entirety and adds a generic term such as “word,” “excel,” or “clip” and “gallery.” Each term added by Respondent has a direct relationship to a product produced and marketed by Complainant. Respondent’s domain names also include a generic top-level domain (“gTLD”) such as “.org,” “.info,” or “.com.” Respondent’s contention that the word “windows” is generic is not credible in this context. The Panel finds that neither the addition of a generic term or terms directly relating to Complainant’s business nor the addition of a gTLD sufficiently differentiate Respondent’s domain names from Complainant’s marks under Policy ¶ 4(a)(i). See Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent’s domain name <marriott-hotel.com> is confusingly similar to the complainant’s MARRIOTT mark); see also Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the respondent’s domain name combines the complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar.
Further, Panel is advised by Respondent in its Response that Respondent does not deny that the domains of <microsoftword.org>, <microsoftexcel.org> and <microsoftclipgallery.com> are identical to the trademarks of Microsoft, and thus consents to transfer of these names to Complainant.
Therefore, the Panel finds that Respondent’s <microsoftword.org>, <microsoftexcel.org>, and <microsoftclipgallery.com> domain names are confusingly similar to Complainant’s MICROSOFT mark. Similarly, the Panel finds that the <windowshosting.info> and <mywindows.org> domain names are confusingly similar to Complainant’s WINDOWS mark
Finally, the Panel finds that Respondent’s <windows.info> domain name is identical to Complainant’s WINDOWS mark as the addition of a gTLD is a necessary addition in the creation of any domain name and therefore an indistinguishing characteristic under Policy ¶ 4(a)(i). See Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003) (“It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar under the Policy.”); see also Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t is a well established principle that generic top-level domains are irrelevant when conducting a Policy ¶4(a)(i) analysis.”).
Rights or Legitimate Interests
Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent
on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist).
Complainant
contends that Respondent is not using the <microsoftword.org>
and <microsoftclipgallery.com> domain
names in any meaningful way.
Respondent’s <microsoftword.org>
and <microsoftclipgallery.com> domain
names simply resolve to a blank website. Respondent's contentions in its
Additional Submission, that it provided archival records from the Internet
Archive for the domain name
<windows.info> dating from 2002 up to 2005, and that its appended
exhibits which indicate use of Fast Counter since 2002 on the domain <windows.info> are proof that the
disputed domain was used as a website providing photographs of building
windows, are simply irrelevant and certainly not demonstrative of its rights
and legitimate use as an independent website.
The Panel finds that Respondent’s failure to use the domain names and its inability to demonstrate preparations to use the disputed domain names in connection with either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) means that Respondent has failed to demonstrate rights or legitimate interests in the <microsoftword.org> and <microsoftclipgallery.com> domain names under Policy ¶ 4(a)(ii). See Nike, Inc. v. Crystal Int’l, D2001-0102 (WIPO Mar. 19, 2001) (finding no rights or legitimate interests where the respondent made no use of the infringing domain names); see also Household Int’l, Inc. v. Cyntom Enters., FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (holding that the respondent’s “vague and unsupported assertion of ‘plans to sell household goods, supplies and appliances over the Internet’” was insufficient to be considered proof of a legitimate business plan).
Moreover, Complainant offers credible evidence to show that each of Respondent’s <microsoftexcel.org>, <windowshosting.info>, <windows.info>, and <mywindows.org> domain names redirect Internet users to websites containing links to various competing and noncompeting commercial websites. The Panel is influenced by information in Complainant's Additional Submission, which shows that the <windows.info> site and the <mywindows.org> site were used by Respondent at least as early as March 7, 2007, in connection with a parked site at Sedo that contained links to suppliers of computer software, for which Respondent was receiving revenue. The Panel infers from Respondent’s use that Respondent is receiving click-through fees for each misdirected Internet user linked to another’s website.
The Panel further finds that Respondent’s use of the <microsoftexcel.org>, <windowshosting.info>, <windows.info>, and <mywindows.org> domain names is not in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names).
Finally, Complainant proves that Respondent is not commonly known by the <microsoftword.org>, <microsoftexcel.org>, <microsoftclipgallery.com>, <windowshosting.info>, <windows.info>, and <mywindows.org> domain names or any by derivation of the marks MICROSOFT or WINDOWS. In fact, the WHOIS records list the Registrant as Konstantinos Zournas aka Konstantinos. Neither does Respondent show any credible evidence that Respondent is licensed to register names featuring Complainant’s well known MICROSOFT or WINDOWS marks. The Panel therefore finds that Respondent has failed to establish that it is commonly known by the any of the disputed domain names under Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) the respondent is not a licensee of the complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question).
Registration and Use in Bad Faith
Complainant proves, via its Exhibits L through Exhibit O, that Respondent is using the <microsoftexcel.org>, <windowshosting.info>, <windows.info>, and <mywindows.org> domain names to resolve to parked websites that have a variety of links related to Complainant's products and other competitive products, for which Respondent receives revenues each time a visitor clicks on one of the links. The Panel finds that Respondent’s use of the disputed domain names in such a manner, constitutes a disruption of Complainant’s business and is evidence of bad fatih registration and use pursuant to Policy ¶ 4(b)(iii). See EBAY, Inc. v. MEOdesigns, D2000-1368 (WIPO Dec. 15, 2000) (finding that the respondent registered and used the domain name <eebay.com> in bad faith where the respondent has used the domain name to promote competing auction sites); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
The Panel also finds that Respondent is profiting from the use of the <microsoftexcel.org>, <windowshosting.info>, <windows.info>, and <mywindows.org> domain names through the collection of click-through fees. The Panel further finds that Respondent’s use of the disputed domain names is likely to cause confusion as to Complainant’s sponsorship of, and affiliation with, the <microsoftexcel.org>, <windowshosting.info>, <windows.info>, and <mywindows.org> domain names. The Panel finds that profiting from such use is evidence of bad faith under Policy ¶ 4(b)(iv). See H-D Michigan, Inc. v. Petersons Auto., FA 135608 (Nat. Arb. Forum Jan. 8, 2003) (finding that the disputed domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(iv) through the respondent’s registration and use of the infringing domain name to intentionally attempt to attract Internet users to its fraudulent website by using the complainant’s famous marks and likeness); see also Qwest Comm’ns Int’l Inc. v. Ling Shun Shing, FA 187431 (Nat. Arb. Forum Oct. 6, 2003) (“Respondent has attempted to commercially benefit from the misleading <qwestwirless.com> domain name by linking the domain name to adult oriented websites, gambling websites, and websites in competition with Complainant. Respondent’s attempt to commercially benefit from the misleading domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv).”).
As further evidence of bad faith, Complainant, in its Additional Submission, offers credible proof that the servers for the <windowshosting.info> domain were set at NS1.PARKED.COM as of the filing of the Complaint, and subsequent to the filing (as shown in Complainant’s Exhibit 7 to Additional Submission), that Respondent changed the servers for this domain to NS1HOST.COM.
Finally, Complainant contends that Respondent has failed to use the <microsoftword.org> and <microsoftclipgallery.com> domain names in any way whatsoever. The Panel finds such failure to use, without demonstrable preparations to develop a legitimate use of the disputed domain names, to be further evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that the inactive use of a domain name permits an inference of registration and use in bad faith); see also Mondich v. Brown, D2000-0004 (WIPO Feb. 16, 2000) (holding that the respondent’s failure to develop its website in a two year period raises the inference of registration in bad faith)
DECISION
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microsoftword.org>, <microsoftexcel.org>, <microsoftclipgallery.com>, <windowshosting.info>, <windows.info>, and <mywindows.org> domain names be TRANSFERRED from Respondent to Complainant.
Carol
M. Stoner, Esq., Panelist
Dated: December 10, 2007
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