Microsoft Corporation v. John Bachini
Claim Number: FA1110001411021
Complainant is Microsoft Corporation (“Complainant”), represented by James F. Struthers of Richard Law Group, Inc., Texas, USA. Respondent is John Bachini (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bingtravel.us>, registered with Name.com.
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.
Daniel B. Banks, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on October 12, 2011; the Forum received received a hard copy of the Complaint on October 13, 2011.
On October 12, 2011, Name.com confirmed by e-mail to the National Arbitration Forum that the <bingtravel.us> domain name is registered with Name.com and that Respondent is the current registrant of the name. Name.com has verified that Respondent is bound by the Name.com registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with the U. S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On October 13, 2011, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of November 2, 2011 by which Respondent could file a Response to the Complaint, was transmitted to Respondent in compliance with Paragraph 2(a) of the Rules for usTLD Dispute Resolution Policy (the “Rules”).
A timely Response was received and determined to be complete on October 31, 2011.
Complainant submitted an Additional Submission on October 31, 2011 which was deemed to be in compliance with Supplemental Rule 7.
On November 9, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Daniel B. Banks, Jr., as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Founded in 1975, Microsoft is a worldwide leader in software, services and solutions that help people and businesses realize their full potential. Among other things, Microsoft provides consumers and businesses with online search, news, travel, shopping and other information services under the trademark BING.
Microsoft officially introduced the BING trademark to the press and public on May 28, 2009. Thereafter, prior to registration of the disputed domain name in August, 2010, the BING mark became famous and acquired secondary meaning through unprecedented global press coverage, including coverage in the United Kingdom where Respondent purportedly resides.
Microsoft has registered BING internationally. Microsoft’s International Registration 996,700 for BING has been accepted and granted protection in the European Union (which includes the United Kingdom - Respondent’s purported country of residence) and other countries. Microsoft also holds United States Registration No.’s 3,883,548 and 3,975,040 for BING. The filing dates for these registrations predate the registration of the disputed domain name.
Microsoft also owns the domain name <bing.com> which was registered on January 29, 1996 and the domain name <bingtravel.com> which was registered on July 7, 2007, and uses these domains to promote its travel-related services.
The disputed domain name incorporates Complainant’s BING trademark in its entirety, adding only the generic term “travel,” which relates directly to Complainant’s business, and the ccTLD .us. These changes are not sufficient to distinguish Respondent’s domain from the BING trademark.
The domain name <bingtravel.us> is also confusingly similar to the genuine URL’s <bingtravel.com> and <bing.com/travel>.
The disputed domain name was plainly chosen by Respondent for its association with Complainant and is confusingly similar to the famous BING mark.
Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by Complainant’s famous BING trademark, nor has Respondent used the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use.
WHOIS identifies Respondent as John Bachini. Respondent is not commonly known by Complainant’s BING trademark. Respondent is not affiliated with Complainant in any way. Respondent is not licensed by Complainant to use Complainant’s BING trademark. Respondent is not an authorized vendor, supplier, or distributor of Complainant’s goods and services.
The disputed domain resolves to a web site that promotes and links to various third party travel services. Given the fame of Complainant’s BING trademark and its well-known use in connection with travel information services, the public is likely to believe that Respondent’s web site and services originate with Complainant, or that Respondent’s business is sponsored or endorsed by Complainant. This constitutes passing off, unfair competition and trademark infringement, and is plainly not a legitimate or bona fide use.
Shortly after being contacted by Complainant about the disputed domain name, Respondent solicited a payment in excess of its registration costs in exchange for transfer. See Exhibit I (“If Microsoft is serious about wanting my domain names I look forward to its ‘amicable’ sensible monetary settlement”). This is further evidence that Respondent has no rights or legitimate interest in the domain.
Respondent registered the disputed domain name in bad faith.
At the time Respondent registered the disputed domain name, Complainant’s BING mark was well-known and famous, and in fact Respondent admits that it was aware of Complainant’s rights in BING by stating:
I am surprised to hear that you and Microsoft have just realized I own the domain name BING.TRAVEL.
I would never consider using the word bing on its own because of their use and a possible trademark owned by them.
Thus, it is abundantly clear that Respondent registered the disputed domain name with knowledge of Complainant’s rights, and intended to create a false and misleading association with Complainant and its services.
Respondent’s registration of the disputed domain name with knowledge of Complainant’s rights is evidence of bad faith registration and use with regard to Policy ¶ 4(a)(iii).
Furthermore, by offering competing goods and services under a confusingly similar domain name, Respondent has attempted to commercially benefit, unfairly and opportunistically, from the goodwill associated with Complainant’s famous BING mark, and this conduct of diversion shows bad faith registration and use pursuant to Policy ¶ 4(b)(iv).
Furthermore, the diversion of users seeking Complainant’s services to Respondent’s advertisers deprives Complainant of revenue and disrupts Complainant’s business for purposes of Policy ¶ 4(b)(iii).
It is well-established that circumstances indicating that a Respondent has registered or acquired a domain name primarily for the purpose of selling the name to the corresponding trademark holder support a finding of bad faith. See ICANN Rule 4(b)(i).
Respondent has registered multiple domain names containing famous marks, including the disputed domain name, the domain name bing.travel which is the subject of a separate UDRP proceeding being filed concurrently herewith, and googlecall.us which includes the famous trademark GOOGLE combined with a service offered by Google, Inc. This reflects a pattern of registering infringing domains, and is further evidence of bad faith.
Based on the foregoing, Respondent has registered the disputed domain name in bad faith.
B. Respondent
I am John Bachini, Respondent and owner of the disputed domain name, <bingtravel.us>.
It is not identical to the bing mark, it is not confusing similar although, I must admit, similar in sound to bingtravel.com.
There was no intention, neither is there any intention of using the bing mark as a misuse. The name <bingtravel.us> is being used in connection with a bona fide offering of goods or service, Travel.
The Respondent is not the owner of the Trademark. Respondent, as an individual, in business, has been using the word and name BING for several years. Respondent has not acquired trademark or service mark. Respondent is making a legitimate commercial and fair use of the domain name, without intent to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The domain name <bingtravel.us> had been registered, I must admit knowing of bing although, not to be used in bad faith.
I, the Respondent, registered the domain name in order to reflect, and point to, a corresponding domain name I already owned, BING.TRAVEL, not to prevent bing from using it – and not in bad faith.
The name is not for sale although I said to the Microsoft Lawyers, in the heat of the moment, that it was. I did suggest payment for my work and mention out-of-pocket costs directly related to the domain name <bingtravel.us>. I need the Domain name to redirect traffic to my master site, BING.TRAVEL. BachiniInterNetGroup. Respondent did not register the domain name for the purpose of disrupting the business of a competitor. I do not see bing as a competitor and they certainly do not see me as one, or should not at least. Respondent has not intentionally attempted to attract, for commercial gain or any other reason, Internet users to Respondent’s website 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 Respondent’s web site or location or of a product or service and has been in the Travel business for many years - before Microsoft purchased bing, or bingtravel.com, which is pointed to bing.com.
C. Additional Submission From Complainant:
This Complaint involves the domain name <bingtravel.us>. A parallel UDRP proceeding between the parties relates to the domain name <bing.travel>. Respondent has attached its UDRP response as Exhibit A to its usDRP response, and apparently intends arguments and/or evidence from its UDRP response to apply here. The respective responses are referred to herein as the UDRP Response and the usDRP Response.
Confusingly Similar Domain Name
a. UDRP Response
Respondent argues in the UDRP Response that his website is different in appearance, meaning and substance from Complainant’s website, <bing.com>. However, similarity of the parties’ websites is not relevant to the issue of whether the domain name <bingtravel.us> is identical or confusingly similar to Complainant’s trademark BING. The disputed domain name incorporates Complainant’s famous BING trademark in its entirety and merely adds the ccTLD .us and the word “travel,” which has a significant meaning for Complainant’s business and in particular its BING travel services. As argued in the usDRP Complainant, these distinctions are insufficient to avoid likelihood of confusion.
Respondent asserts in the UDRP Response that Complainant has only recently entered the travel business. This statement is surprising given Respondent’s claimed involvement in the travel industry.
Respondent is presumably aware that Complainant provided travel-related services through Expedia and MSN well prior to its public announcement of BING in May of 2009, a fact that is and was well known in the US and the UK where the Respondent resides. For example, when Microsoft UK announced its UK online travel booking service under MSN Expedia in November of 1998, it was certainly known to those in the travel business, such as Respondent, if not most UK consumers. See Exhibit A hereto, a representative article in the UK announcing MSN Expedia and indicating that Complainant’s travel services “will be heavily advertised on and off the Internet.”
Bing Travel was a major component of the BING search engine when it was officially announced on May 28, 2009. A subsequent June 4, 2009 press release detailed the ways that a consumer can use BING to make smart travel decisions. Other articles ran in UK publications and discussed BING in connection with online travel in the UK well prior to the registration date of <bing.travel> or <bingtravel.us>. All of these references to Complainant’s BING travel services were published well prior to the registration of <bing.travel> in August of 2010 and <bingtravel.us> in September, 2011. And in fact, the evidence establishes that the press began speculating about the new name of Complainant’s search engine as far back as 2008, well prior to the formal press release on May 28, 2009.
Under the circumstances above, and as set forth in the Complaint, for Respondent to contend in his UDRP Response that he had never even heard of <bing.com> when he registered <bing.travel> in August of 2010 is simply not credible. The fact is that Complainant filed applications to register the BING mark in the United States and internationally in March of 2009 and publicly announced the BING search engine in May of 2009 which resulted in unprecedented worldwide press in the US, UK and elsewhere. Respondent later registered <bing.travel> in August, 2010 and then <bingtravel.us> in September, 2011, relying on the confusion that would arise from public awareness of Complainant’s BING services to drive traffic to his website.
Respondent’s further contentions that BING is not very well known in the UK or that 95% of people use Google are completely unsupported and should be given no weight. Furthermore, Respondent claimed a nexus with the United States in order to obtain a .us registration, and it is at least inconsistent to now suggest that he is completely unfamiliar with the US travel market. Thus, Microsoft has established its prior rights to the BING trademark and that the disputed domain name <bingtravel.us> is confusingly similar to Complainant’s BING trademark.
b. usDRP Response
Respondent states in its usDRP Response that <bingtravel.us> is not confusingly similar to BING, but offers no supporting arguments and even concedes the similarity to Complainant’s domain name <bingtravel.com>.
No Rights or Legitimate Interest
In alleging that he has rights or legitimate interests in the domain, Respondent relies mostly upon his <bing.travel> response, in which Respondent alleged that he has rights to the domain name merely because he is in the travel business and was awarded <bing.travel> when he applied for it. This does not establish Respondent’s rights or legitimate interests in a domain name that incorporates Complainant’s famous BING trademark. As noted in the Complaint, WHOIS identifies the owner of the domain name as John Bachini, not as “Bing” and further, Microsoft has not authorized Respondent to use the BING name for any purpose. The fact that Respondent may work in the travel business does not make Respondent’s adoption of BING for travel legitimate, when Respondent’s only verifiable use of BING (at <bing.travel>) occurred more than a year after Complainant introduced Bing and Bing Travel under widespread international press coverage.
Registration and Use in Bad Faith
a. UDRP Response
In his UDRP Response, Respondent first relies on the mistaken position that the relevant date for establishing Complainant’s rights or Respondent’s bad faith is the grant date for Complainant’s trademark registrations. Complainant’s rights arise, of course, from use of BING and filing dates for its BING registrations, and all of these are substantially earlier than the registration dates for <bing.travel> or <bingtravel.us>.
Next, Respondent falsely asserts that his registration date for <bing.travel> is June 1, 2009. Exhibit A to the Complaint and Exhibit D hereto plainly show that Respondent registered <bing.travel> in August, 2010 and <bingtravel.us> in September, 2011, well after Complainant’s trademark applications were filed in March, 2009 and well after Complainant’s Bing Travel service was announced on May 28, 2009.
Respondent argues that “Bing” has other meanings in the UK such as a toy train engine which was known as a “Bing” as well as a drink in the Kent region of the UK known as “Bing.” These allegations are completely lacking in evidentiary support, but more importantly, they fail to establish that Respondent did not register or use the disputed domain name in bad faith. The disputed domain name was never used by Respondent to advertise a toy train or a drink – it is used as a travel site (and in fact a travel search site as can be seen in Exhibit H), as is <bing.com>. Furthermore, the relevant marketplace for determining the significance of terms in a .US domain is logically the United States, not the UK.
Respondent also attaches what he states are copies of his old books from August and October of 2007 where he alleges that he mentions “Bing.” This evidence is unsupported, irrelevant and lacking in credibility. The first page is undated and could have been created at any time. Additionally, while the page has a reference to BING as an acronym for “Bachini International Network Group” there is no evidence that Respondent has ever used that name in his business, there is no evidence that it was used in connection with <bing.travel> or <bingtravel.us>, and there are clear reasons to doubt the veracity of these pages. The other pages of Respondent’s alleged notebooks are equally irrelevant and lacking in credibility. Even if one believes that Respondent may have thought of the use of the term “Bing” prior to the date of registration of these domain names, this is irrelevant to the issue of whether he registered and used these domains in bad faith. The fact remains that Respondent registered these domain names well after BING became famous, and was famously associated with travel services, and he has used these domains in an effort to attract consumers to his website and commercially benefit from the resulting consumer confusion.
Respondent acknowledges that he previously registered <googlecall.us> but argues that this was well before he knew that Google had a call service. This statement is telling as Respondent now argues that he registered <bing.travel> before he knew that Microsoft was in the travel business. The evidence is clear that Complainant had been in the travel business and used BING for travel-related services well before the registration of <bing.travel> or <bingtravel.us>. Respondent’s after-the-fact arguments and contentions are simply not credible.
b. usDRP Response
Respondent argues that <bingtravel.us> was not registered in bad faith because it points to <bing.travel>. However, <bing.travel> was registered in August, 2010, which is well after Complainant’s rights in BING were established through use in connection with travel services and registration in International Class 39. Accordingly, both domains were registered after and with full knowledge of Complainant’s Bing Travel business, and both domains were registered in bad faith. Further arguments and evidence may be found in the Complaint.
Respondent suggests that its use of BING is necessary because it stands for BachiniInterNetGroup.” This creative after-the-fact acronym is not in use on Respondent’s web site, has no bearing on bad faith. See Microsoft Corp. v. World Media Service, FA 1254446 (Nat. Arb. Forum May 11, 2009) (“Respondent’s assertion that “videomsn” stands for “video marketing support network” is disingenuous and an after-the-fact rationalization designed to deflect infringement of Complainant’s famous mark. The above-referenced phrase is never found on Respondent’s website nor anywhere else over the internet.”).
Respondent indicates that it does not consider Complainant a competitor. However, Respondent’s home page and Complainant’s travel site both offer identical services, e.g. hotel search functions. See Exhibits B and H to the Complaint. These services are plainly competitive.
Conclusion
The domain name <bingtravel.us> is confusingly similar to Microsoft’s BING trademark, Respondent has no rights or legitimate interests in the disputed domain name and the domain name was registered and used in bad faith. Accordingly, the disputed domain name should be transferred to Complainant.
1 - The disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights.
2 - Respondent has no rights or legitimate interests in respect of the domain name.
3 - The domain name has been registered or is being used in bad faith.
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."
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 or is being used in bad faith.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
Complainant asserts that it has rights in its BING mark under Policy ¶ 4(a)(i) through its trademark registrations of the mark with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,883,548 registered November 30, 2010). Complainant also submits evidence that it owns a trademark registration with the European Union’s Office for Harmonization in the Internal Market (“OHIM”) for the BING mark (Reg. No. 996700 registered February 3, 2009). Through such trademark registrations, the Panel finds that Complainant has established Policy ¶ 4(a)(i) rights in its BING mark. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world); see also Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the complainant’s numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant’s rights in the mark under the UDRP ¶ 4(a)(i)).
Complainant further contends, within its Complaint and Additional Submission, that the <bingtravel.us> domain name is confusingly similar to its BING mark because the domain name merely adds the generic or descriptive term “travel” and the country-code top-level domain (“ccTLD”) “.us.” The Panel agrees with Complainant and finds that the disputed domain name is confusingly similar to the BING mark under Policy ¶ 4(a)(i). See Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under UDRP ¶ 4(a)(i)); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Nat. Arb. Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds that Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). The burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant has not presented any arguments as to whether Respondent owns any trademark or service mark in relation to the disputed domain name. However, there is no evidence presented by Respondent relating to this section of the usTLD Policy either. Therefore, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(i). See Meow Media Inc. v. Basil, FA 113280 (Nat. Arb. Forum Aug. 20, 2002) (finding that there was no evidence that the respondent was the owner or beneficiary of a mark that is identical to the <persiankitty.us> domain name); see also Pepsico, Inc. v Becky, FA 117014 (Nat. Arb. Forum Sept. 3, 2002) (holding that because the respondent did not own any trademarks or service marks reflecting the <pepsicola.us> domain name, it had no rights or legitimate interests pursuant to Policy ¶ 4(c)(i)).
In its Complaint and Additional Submission, Complainant argues that, as the WHOIS information indicates that “John Bachini” is the registrant of the <bingtravel.us> domain name, Respondent is not commonly known by the domain name. Further, Complainant contends that it has never authorized Respondent to use the BING mark as a vendor, supplier, or distributor of Complainant’s goods. The Panel agrees and finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(iii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark); see also St. Lawrence Univ. v. Nextnet Tech, FA 881234 (Nat. Arb. Forum Feb. 21, 2007) (concluding a respondent has no rights or legitimate interests in a disputed domain name where there was no evidence in the record indicating that the respondent was commonly known by the disputed domain name).
Complainant alleges that the disputed domain name resolves to a website that promotes, and provides links to, travel services from companies that are unrelated to Complainant. However, within its Complaint and Additional Submission, Complainant contends that it also provides information and services regarding travel, thereby making such use competing with its own offerings. In reviewing Complainant’s submitted evidence, the Panel notes that Respondent’s resolving website offers links to third-party websites as well as offering Internet users a chance to enter destination information for hotels, flights, cars, cruises, and others, presumably to receive information regarding pricing and booking of trips. The Panel finds that Respondent’s use of the domain name does not amount to a bona fide offering of goods or services under Policy ¶ 4(c)(ii) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iv). See Yahoo! Inc. v. Web Master, FA 127717 (Nat. Arb. Forum Nov. 27, 2002) (finding that the respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with the complainant, was not a bona fide offering of goods or services); see also Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services).
Complainant contends that it offers travel information and services under its BING mark and through its official <bing.com> domain name. Complainant argues that Respondent’s use of the disputed domain name to offer travel information and services disrupts Complainant’s own offerings within the same market area. In its Additional Submission, Complainant rejects Respondent’s contention that Complainant does not offer travel services by stating, “a major component of the BING search engine when it was officially announced on May 28, 2009” was its travel components. Also within its Additional Submission, Complainant has presented articles on third-party articles and references to the BING travel services that are offered by Complainant. Complainant alleges that such use by Respondent is evidence of bad faith registration and use under Policy ¶ 4(b)(iii). The Panel finds that Respondent’s offering of travel information and services is evidence of both registration and use of the domain name in bad faith pursuant to Policy ¶ 4(b)(iii). See Marriott Int’l, Inc. v. MCM Tours, Inc., FA 444510 (Nat. Arb. Forum May 6, 2005) (“The Respondent is a travel agency and thus operates in the same business as the Complainant. The parties can therefore be considered as competitors. The Panel thus finds that the Respondent registered the domain name primarily for the purpose of disrupting the business of a competitor, which constitutes evidence of registration and use in bad faith under [UDRP] 4(b)(iii).”); see also Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to UDRP ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website).
Complainant also contends that Respondent could not have registered and used the disputed domain name without actual or constructive knowledge of Complainant and its rights in the BING mark. Complainant argues that Respondent has admitted both in its correspondence with Complainant, and in the Response, that it knew of Complainant and its rights in the BING mark prior to registering the domain name at issue. While constructive notice has not been generally held to suffice for a finding of bad faith registration and use, the evidence indicates that Respondent had actual notice of Complainant’s trademark rights. Therefore, the Panel finds that Respondent registered and is using the disputed domain name in bad faith under Policy ¶ 4(a)(iii). The evidence indicates that Respondent had actual notice of Complainant’s trademark rights. See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Nat. Arb. Forum Apr. 10, 2006) (stating that while mere constructive knowledge is insufficient to support a finding of bad faith, where the circumstances indicate that the respondent had actual knowledge of the complainant’s mark when it registered the domain name, panels can find bad faith); see also Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was “well-aware” of the complainant’s YAHOO! mark at the time of registration).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be Granted.
Accordingly, it is Ordered that the <bingtravel.us> domain name be TRANSFERRED from Respondent to Complainant.
Daniel B. Banks, Jr., Panelist
Dated: November 21, 2011
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