Microsoft Corporation v. Yaoxin Liu
Claim Number: FA1003001312061
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 <debtbing.com>, <ecommercebing.com>, <healthinsurancebing.com>, <medicalbing.com>, <stocksbing.com>, <toybing.com>, <bingbeautiful.com>, <domainbing.com>, <educationbing.com>, <medicinebing.com>, <tradingbing.com>, <webmasterbing.com>, <catalogsbing.com>, <ipbing.com>, <mortgagebing.com>, <tourbing.com>, <universitybing.com>, <bingcanada.com>, <bingcreditcards.com>, <homesbing.com>, <popbing.com>, <salesbing.com>, <creditcardbing.com>, <dietbing.com>, <entertainmentbing.com>, <insurancebing.com>, <healthcarebing.com>, <emailbing.com>, <carsbing.com>, <financialbing.com>, <giftsbing.com>, <holidaysbing.com>, <schoolbing.com>, <beautifulbing.com>, <touristbing.com>, <hostbing.com>, <vitaminsbing.com>, <binggamble.com>, <tradebing.com>, <computerbing.com>, <bankbing.com>, <jobsbing.com>, <stockmarketbing.com>, <ebusinessbing.com>, <girlbing.com>, <digitalbing.com>, <trademarkbing.com>, and <creditcardsbing.com>, registered with Name.com LLC.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on March 8, 2010.
On March
10, 2010, Name.com LLC confirmed by e-mail to the National Arbitration
Forum that the <debtbing.com>, <ecommercebing.com>, <healthinsurancebing.com>,
<medicalbing.com>, <stocksbing.com>, <bingbeautiful.com>,
<domainbing.com>, <educationbing.com>, <medicinebing.com>,
<tradingbing.com>, <webmasterbing.com>, <tourbing.com>,
<bingcreditcards.com>, <homesbing.com>, <popbing.com>,
<salesbing.com>, <creditcardbing.com>, <beautifulbing.com>,
<touristbing.com>, <hostbing.com>, <vitaminsbing.com>,
<binggamble.com>, <tradebing.com>, <computerbing.com>,
<bankbing.com>, <jobsbing.com>, <stockmarketbing.com>,
<ebusinessbing.com>, <girlbing.com>, <digitalbing.com>,
and <trademarkbing.com> domain names are registered
with Name.com LLC and that Respondent is
the current registrant of the names. On March 11, 2010, Name.com LLC
confirmed by e-mail to the National Arbitration Forum that the <creditcardsbing.com>, <dietbing.com>,
<entertainmentbing.com>, <insurancebing.com>, <healthcarebing.com>,
<catalogsbing.com>, <ipbing.com>, <mortgagebing.com>,
<toybing.com>, <universitybing.com>, and <bingcanada.com>
domain names are registered with Name.com
LLC and that Respondent is the current registrant of the names. On March 12,
2010, Name.com LLC confirmed by
e-mail to the National Arbitration Forum that the <carsbing.com>, <emailbing.com>, <financialbing.com>,
<giftsbing.com>, <holidaysbing.com>, and <schoolbing.com>
domain names are registered with Name.com
LLC and that Respondent is the current registrant of the names. Name.com LLC
has verified that Respondent is bound by the Name.com
LLC 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 March 16, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 5, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@debtbing.com, postmaster@ecommercebing.com, postmaster@healthinsurancebing.com, postmaster@medicalbing.com, postmaster@stocksbing.com, postmaster@toybing.com, postmaster@bingbeautiful.com, postmaster@domainbing.com, postmaster@educationbing.com, postmaster@medicinebing.com, postmaster@tradingbing.com, postmaster@webmasterbing.com, postmaster@catalogsbing.com, postmaster@ipbing.com, postmaster@mortgagebing.com, postmaster@tourbing.com, postmaster@universitybing.com, postmaster@bingcanada.com, postmaster@bingcreditcards.com, postmaster@homesbing.com, postmaster@popbing.com, postmaster@salesbing.com, postmaster@creditcardbing.com, postmaster@dietbing.com, postmaster@entertainmentbing.com, postmaster@insurancebing.com, postmaster@healthcarebing.com, postmaster@emailbing.com, postmaster@carsbing.com, postmaster@financialbing.com, postmaster@giftsbing.com, postmaster@holidaysbing.com, postmaster@schoolbing.com, postmaster@beautifulbing.com, postmaster@touristbing.com, postmaster@hostbing.com, postmaster@vitaminsbing.com, postmaster@binggamble.com, postmaster@tradebing.com, postmaster@computerbing.com, postmaster@bankbing.com, postmaster@jobsbing.com, postmaster@stockmarketbing.com, postmaster@ebusinessbing.com, postmaster@girlbing.com, postmaster@digitalbing.com, postmaster@trademarkbing.com, and postmaster@creditcardsbing.com by e-mail. Also on March 16, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On April 14, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <debtbing.com>, <ecommercebing.com>, <healthinsurancebing.com>, <medicalbing.com>, <stocksbing.com>, <toybing.com>, <bingbeautiful.com>, <domainbing.com>, <educationbing.com>, <medicinebing.com>, <tradingbing.com>, <webmasterbing.com>, <catalogsbing.com>, <ipbing.com>, <mortgagebing.com>, <tourbing.com>, <universitybing.com>, <bingcanada.com>, <bingcreditcards.com>, <homesbing.com>, <popbing.com>, <salesbing.com>, <creditcardbing.com>, <dietbing.com>, <entertainmentbing.com>, <insurancebing.com>, <healthcarebing.com>, <emailbing.com>, <carsbing.com>, <financialbing.com>, <giftsbing.com>, <holidaysbing.com>, <schoolbing.com>, <beautifulbing.com>, <touristbing.com>, <hostbing.com>, <vitaminsbing.com>, <binggamble.com>, <tradebing.com>, <computerbing.com>, <bankbing.com>, <jobsbing.com>, <stockmarketbing.com>, <ebusinessbing.com>, <girlbing.com>, <digitalbing.com>, <trademarkbing.com>, and <creditcardsbing.com> domain names are confusingly similar to Complainant’s BING mark.
2. Respondent does not have any rights or legitimate interests in the <debtbing.com>, <ecommercebing.com>, <healthinsurancebing.com>, <medicalbing.com>, <stocksbing.com>, <toybing.com>, <bingbeautiful.com>, <domainbing.com>, <educationbing.com>, <medicinebing.com>, <tradingbing.com>, <webmasterbing.com>, <catalogsbing.com>, <ipbing.com>, <mortgagebing.com>, <tourbing.com>, <universitybing.com>, <bingcanada.com>, <bingcreditcards.com>, <homesbing.com>, <popbing.com>, <salesbing.com>, <creditcardbing.com>, <dietbing.com>, <entertainmentbing.com>, <insurancebing.com>, <healthcarebing.com>, <emailbing.com>, <carsbing.com>, <financialbing.com>, <giftsbing.com>, <holidaysbing.com>, <schoolbing.com>, <beautifulbing.com>, <touristbing.com>, <hostbing.com>, <vitaminsbing.com>, <binggamble.com>, <tradebing.com>, <computerbing.com>, <bankbing.com>, <jobsbing.com>, <stockmarketbing.com>, <ebusinessbing.com>, <girlbing.com>, <digitalbing.com>, <trademarkbing.com>, and <creditcardsbing.com> domain names.
3. Respondent registered and used the <debtbing.com>, <ecommercebing.com>, <healthinsurancebing.com>, <medicalbing.com>, <stocksbing.com>, <toybing.com>, <bingbeautiful.com>, <domainbing.com>, <educationbing.com>, <medicinebing.com>, <tradingbing.com>, <webmasterbing.com>, <catalogsbing.com>, <ipbing.com>, <mortgagebing.com>, <tourbing.com>, <universitybing.com>, <bingcanada.com>, <bingcreditcards.com>, <homesbing.com>, <popbing.com>, <salesbing.com>, <creditcardbing.com>, <dietbing.com>, <entertainmentbing.com>, <insurancebing.com>, <healthcarebing.com>, <emailbing.com>, <carsbing.com>, <financialbing.com>, <giftsbing.com>, <holidaysbing.com>, <schoolbing.com>, <beautifulbing.com>, <touristbing.com>, <hostbing.com>, <vitaminsbing.com>, <binggamble.com>, <tradebing.com>, <computerbing.com>, <bankbing.com>, <jobsbing.com>, <stockmarketbing.com>, <ebusinessbing.com>, <girlbing.com>, <digitalbing.com>, <trademarkbing.com>, and <creditcardsbing.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Microsoft Corporation, manufactures, markets, and sells computer software, hardware and related products and services. Complainant implemented the <bing.com> search engine on May 28, 2009 under its BING mark. Complainant owns the <bing.com> domain name, which Complainant uses to provide its search engine services. Complainant received worldwide press coverage of the launch of the BING search engine and subsequent trademark registration application with the United States Patent and Trademark Office (“USPTO”), as well as with other governmental trademark authorities worldwide.
Respondent registered the <debtbing.com>, <ecommercebing.com>, <healthinsurancebing.com>, <medicalbing.com>, <stocksbing.com>, <toybing.com>, <bingbeautiful.com>, <domainbing.com>, <educationbing.com>, <medicinebing.com>, <tradingbing.com>, <webmasterbing.com>, <catalogsbing.com>, <ipbing.com>, <mortgagebing.com>, <tourbing.com>, <universitybing.com>, <bingcanada.com>, <bingcreditcards.com>, <homesbing.com>, <popbing.com>, <salesbing.com>, <creditcardbing.com>, <dietbing.com>, <entertainmentbing.com>, <insurancebing.com>, <healthcarebing.com>, <emailbing.com>, <carsbing.com>, <financialbing.com>, <giftsbing.com>, <holidaysbing.com>, <schoolbing.com>, <beautifulbing.com>, <touristbing.com>, <hostbing.com>, <vitaminsbing.com>, <binggamble.com>, <tradebing.com>, <computerbing.com>, <bankbing.com>, <jobsbing.com>, <stockmarketbing.com>, <ebusinessbing.com>, <girlbing.com>, <digitalbing.com>, <trademarkbing.com>, and <creditcardsbing.com> domain names on May 31, 2009. Respondent has parked the disputed domain names with the website <information.com>, where various third-party links to competing and unrelated businesses of Complainant are displayed.
Paragraph 15(a) of 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."
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Paragraph 4(a) of the Policy requires that 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 Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) 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.
Complainant has filed for trademark registrations with the
United States Patent and Trademark Office (“USPTO”), as well as other
governmental trademark authorities worldwide but has not yet been granted a
trademark registration with any governmental agency for its BING mark. However, the Panel finds that governmental
trademark registration is not necessary to establish rights under Policy ¶ 4(a)(i). Previous panels
have determined that a federal registration is not required so long as
Complainant can establish common law rights through proof of sufficient
secondary meaning associated with the mark.
See SeekAmerica Networks Inc. v.
Masood, D2000-0131 (WIPO Apr. 13, 2000) (finding that the Rules do not
require that the complainant's trademark or service mark be registered by a
government authority or agency for such rights to exist); see also Artistic
Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8,
2007) (finding that Policy ¶ 4(a)(i) does not require a trademark registration
if a complainant can establish common law rights in its mark).
Complainant proclaims that it has established common law rights in its BING mark that predate Respondent’s registration of the disputed domain names. Complainant uses its BING mark in association with its search engine service. Complainant officially began operating the search engine on May 28, 2009 which is three days before Respondent registered the disputed domain names. When Complainant launched the BING search engine, the launch was covered in worldwide publications both in print and online. The media attention that surrounded the launch of Complainant’s new search engine was extensive, with coverage beginning well over a year before the official launch date. The media coverage of the official launch of Complainant’s <bing.com> search engine was highly active the day of the launch, as well as the weeks following the launch and implementation, including the day of Respondent’s registration of the disputed domain names. Complainant owns the <bing.com> domain name, which Complainant uses to provide its search engine services. Complainant has continuously and extensively promoted its BING mark and new search engine. Therefore, the Panel finds that Complainant has established common law rights in the BING mark through continuous and extensive commercial use predating Respondent’s registration of the disputed domain name under Policy ¶ 4(a)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Nat. Arb. Forum Apr. 25, 2007) (finding that the complainant could establish common law rights in its GW BAKERIES mark through consistent and continuous use of the mark, which helped the mark become distinctive and generate “significant goodwill”); see also Enfinger Dev., Inc. v. Montgomery, FA 370918 (Nat. Arb. Forum Feb. 16, 2005) (finding that the complainant had common law rights in the McMULLEN COVE mark because the complainant provided sufficient evidence that the mark had acquired secondary meaning, including development plans, correspondence with government officials, and newspaper articles featuring the mark).
Complainant argues that all of Respondent’s disputed domain
names are confusingly similar to Complainant’s BING mark. The <debtbing.com>, <ecommercebing.com>,
<healthinsurancebing.com>, <medicalbing.com>, <stocksbing.com>,
<toybing.com>, <bingbeautiful.com>, <domainbing.com>,
<educationbing.com>, <medicinebing.com>, <tradingbing.com>,
<webmasterbing.com>, <catalogsbing.com>, <ipbing.com>,
<mortgagebing.com>, <tourbing.com>, <universitybing.com>,
<bingcanada.com>, <bingcreditcards.com>, <homesbing.com>,
<popbing.com>, <salesbing.com>, <creditcardbing.com>,
<dietbing.com>, <entertainmentbing.com>, <insurancebing.com>,
<healthcarebing.com>, <emailbing.com>, <carsbing.com>,
<financialbing.com>, <giftsbing.com>, <holidaysbing.com>,
<schoolbing.com>, <beautifulbing.com>, <touristbing.com>,
<hostbing.com>, <vitaminsbing.com>, <binggamble.com>,
<tradebing.com>, <computerbing.com>, <bankbing.com>,
<jobsbing.com>, <stockmarketbing.com>, <ebusinessbing.com>,
<girlbing.com>, <digitalbing.com>, <trademarkbing.com>,
and <creditcardsbing.com> domain names all contain Complainant’s
BING mark with the additions of generic terms, abbreviated generic and
geographic terms, and the generic top-level domain (“gTLD”) “.com.” The Panel finds that the disputed domain
names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i),
because Respondent’s combination of Complainant’s BING mark with generic terms,
abbreviated generic terms, geographic terms, and the addition of the gTLD
“.com” is not sufficient to distinguish the disputed domain names from
Complainant’s mark. See Arthur Guinness Son & Co. (
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant declares that Respondent does not have any rights or legitimate interests in the <debtbing.com>, <ecommercebing.com>, <healthinsurancebing.com>, <medicalbing.com>, <stocksbing.com>, <toybing.com>, <bingbeautiful.com>, <domainbing.com>, <educationbing.com>, <medicinebing.com>, <tradingbing.com>, <webmasterbing.com>, <catalogsbing.com>, <ipbing.com>, <mortgagebing.com>, <tourbing.com>, <universitybing.com>, <bingcanada.com>, <bingcreditcards.com>, <homesbing.com>, <popbing.com>, <salesbing.com>, <creditcardbing.com>, <dietbing.com>, <entertainmentbing.com>, <insurancebing.com>, <healthcarebing.com>, <emailbing.com>, <carsbing.com>, <financialbing.com>, <giftsbing.com>, <holidaysbing.com>, <schoolbing.com>, <beautifulbing.com>, <touristbing.com>, <hostbing.com>, <vitaminsbing.com>, <binggamble.com>, <tradebing.com>, <computerbing.com>, <bankbing.com>, <jobsbing.com>, <stockmarketbing.com>, <ebusinessbing.com>, <girlbing.com>, <digitalbing.com>, <trademarkbing.com>, and <creditcardsbing.com> domain names. Complainant is required to make a prima facie case in support of these allegations. Once Complainant has produced a prima facie case the burden of proof shifts to Respondent to show why it has rights or interests in the disputed domain names. See Intel Corp. v. Macare, FA 660685 (Nat. Arb. Forum Apr. 26, 2006) (finding the “complainant must first make a prima facie case that [the] respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then the burden shifts to [the] respondent to show it does have rights or legitimate interests.”); see also Domtar, Inc. v. Theriault., FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out 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 paragraph 4(a)(ii) of the Policy.”). The Panel finds that the Complainant has produced a prima facie case. Due to the Respondent’s failure to respond to these proceedings, the Panel may assume Respondent does not have any rights or legitimate interests in the disputed domain names. The Panel, however, will examine the record to determine whether Respondent possesses rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c). See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where the respondent fails to respond).
Complainant contends that Respondent is not commonly known by the disputed domain names and further, that Complainant has not authorized or approved of Respondent using its BING mark in any way. The WHOIS information lists the domain names registrant as “Yaoxin Liu,” and Respondent has not offered any evidence that it is commonly known as the disputed domain names. Therefore, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name).
Respondent’s disputed domain names are parked with the
website <information.com>.
Complainant asserts that Respondent is receiving click-through fees from
the third-party links that are displayed on the website accessed through the
disputed domain names. Further,
Complainant argues that this type of use is evidence of Respondent’s lack of
rights and legitimate interests in the disputed domain names. The Panel finds that Respondent’s use of the
disputed domain names that are confusingly similar to Complainant’s BING mark
is not a use in connection with a bona
fide offering of goods or services under Policy ¶ 4(c)(i),
nor is it a noncommercial or fair use under Policy ¶ 4(c)(iii) where the
disputed domain names resolve to a links page that Respondent presumably
profits from. See Charles Letts & Co Ltd. v.
Citipublications, FA 692150 (Nat. Arb. Forum July 17, 2006) (finding
that the respondent’s parking of a domain name containing the complainant’s
mark for the respondent’s commercial gain did not satisfy Policy ¶ 4(c)(i) or ¶
4(c)(iii)); see also Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that
using a domain name to direct Internet traffic to a website featuring pop-up
advertisements and links to various third-party websites is neither a bona
fide offering of goods or services under Policy ¶ 4(c)(i)
nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii) because the
registrant presumably receives compensation for each misdirected Internet user);
see also Meyerson v. Speedy
Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a
respondent has failed to offer any goods or services on its website other than
links to a variety of third-party websites, it was not using a domain name in
connection with 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)).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant argues that Respondent’s use of the disputed domain names to re-direct Internet users to the <information.com> website, where various third-party links are displayed, some of which compete with Complainant, leads to a disruption in Complainant’s online business. The Panel finds that Respondent’s use of the confusingly similar disputed domain names to re-direct Internet users to a website that displays various third-party links is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006) (finding that the respondent engaged in bad faith registration and use pursuant to Policy ¶ 4(b)(iii) by using the disputed domain names to operate a commercial search engine with links to the products of the complainant and to complainant’s competitors, as well as by diverting Internet users to several other domain names); see also Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly similar domain name to attract Internet users to a directory website containing commercial links to the websites of a complainant’s competitors represents bad faith registration and use under Policy ¶ 4(b)(iii)).
Complainant also contends that Respondent’s use of the disputed domain names to divert Internet users to a website containing third-party links to various competing and unrelated websites of Complainant is further evidence of bad faith registration and use. Complainant argues that this use allows Respondent to benefit commercially from click-through fees that it receives from the third-party links displayed on the website resolving from the disputed domain names. The Panel finds that Respondent’s use of the confusingly similar disputed domain names to attract Internet users to a website that displays third-party links, presumably for financial gain, is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Bank of Am. Fork v. Shen, FA 699645 (Nat. Arb. Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Respondent registered the disputed domain names two days
after Complainant began operating its search engine that had a widely
publicized build up and release date. The
Panel finds that this conduct constitutes opportunistic bad faith, and is
evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Tech. Props., Inc. v. Hussain, FA 95411 (Nat. Arb. Forum
Sept. 14, 2000) (“The Respondent took advantage of the public announcement that
Tandy Corporation was changing its name to RadioShack by registering the domain
names on the same day as a public announcement of a company’s name change. This is also evidence of bad faith.”); see also
Sota v. Waldron, D2001-0351 (WIPO June 18, 2001) (finding that
the respondent’s registration of the <seveballesterostrophy.com> domain
name at the time of the announcement of the Seve Ballesteros Trophy golf
tournament “strongly indicates an opportunistic registration”).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <debtbing.com>, <ecommercebing.com>, <healthinsurancebing.com>, <medicalbing.com>, <stocksbing.com>, <toybing.com>, <bingbeautiful.com>, <domainbing.com>, <educationbing.com>, <medicinebing.com>, <tradingbing.com>, <webmasterbing.com>, <catalogsbing.com>, <ipbing.com>, <mortgagebing.com>, <tourbing.com>, <universitybing.com>, <bingcanada.com>, <bingcreditcards.com>, <homesbing.com>, <popbing.com>, <salesbing.com>, <creditcardbing.com>, <dietbing.com>, <entertainmentbing.com>, <insurancebing.com>, <healthcarebing.com>, <emailbing.com>, <carsbing.com>, <financialbing.com>, <giftsbing.com>, <holidaysbing.com>, <schoolbing.com>, <beautifulbing.com>, <touristbing.com>, <hostbing.com>, <vitaminsbing.com>, <binggamble.com>, <tradebing.com>, <computerbing.com>, <bankbing.com>, <jobsbing.com>, <stockmarketbing.com>, <ebusinessbing.com>, <girlbing.com>, <digitalbing.com>, <trademarkbing.com>, and <creditcardsbing.com> domain names be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: April 23, 2010
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