Microsoft Corporation v. Lu Shi Yu
Claim Number: FA1704001728630
Complainant is Microsoft Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Lu Shi Yu (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <microsoftmvp.com>, registered with HiChina Zhicheng Technology Limited.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 24, 2017; the Forum received payment on April 24, 2017. The Complaint was received in both Chinese and English.
On April 25, 2017, HiChina Zhicheng Technology Limited confirmed by e-mail to the Forum that the <microsoftmvp.com> domain name is registered with HiChina Zhicheng Technology Limited and that Respondent is the current registrant of the name. HiChina Zhicheng Technology Limited has verified that Respondent is bound by the HiChina Zhicheng Technology Limited registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On April 28, 2017, the Forum served the Chinese language Complaint and all Annexes, including a Chinese language Written Notice of the Complaint, setting a deadline of May 18, 2017 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@microsoftmvp.com. Also on April 28, 2017, the Chinese language Written Notice of the Complaint, notifying Respondent of the e-mail 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 Forum transmitted to the parties a Notification of Respondent Default.
On May 30, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sebastian M W Hughes as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a worldwide leader in software, services and solutions that help people and businesses realize their full potential. Complainant has used its well-known MICROSOFT trademark (the “Trademark”) since 1975. The Trademark is registered in numerous jurisdictions worldwide.
For over 20 years, Complainant has had a program called the Microsoft MVP program which awards certain individuals as a “Most Valuable Professional” for their deep knowledge of Microsoft products and their contributions to the community. The various Microsoft MVP awardees are located all over the world, including in China.
Respondent is using the disputed domain name in connection with a website that promotes an IT business using the name MICROMVP – Your Microsoft Technology Partner, and uses Complainant’s Windows 10 desktop icons as a backdrop, making the site appear to be an official Microsoft site when it is not (the “Website”).
Complainant contends that the disputed domain name is identical or confusingly similar to the Trademark, Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name has been registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to transfer of the domain names.
Language of the Proceedings
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Chinese language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Substantive Decision
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 and is being used in bad faith.
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(f), 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 (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.”).
The domain name is confusingly similar to the Trademark and is identical to the sign MICROSOFT MVP in respect of which Complainant possesses unregistered (or common law) trademark rights, by virtue of Complainant’s use of the sign MICROSOFT MVP for over 20 years.
There is no evidence that Complainant has authorised, licensed, or permitted Respondent to register or use the domain name or to use the Trademark. Complainant has prior rights in the Trademark which incidentally precede Respondent’s registration of the domain name by many years. The Panel finds on the record that there is therefore a prima facie case that Respondent has no rights or legitimate interests in the domain name, and the burden is thus on Respondent to produce evidence to rebut this presumption.
Respondent has failed to show that it has acquired any legitimate trademark rights in respect of the domain name or that the domain name has been used in connection with a bona fide offering of goods or services. To the contrary, Respondent has used the domain name in respect of the Website, without the authorisation or approval of Complainant, in order to attract Internet users to the Website.
There has been no evidence adduced to show that Respondent has been commonly known by the domain name.
There has been no evidence adduced to show that Respondent is making a legitimate non-commercial or fair use of the domain name.
The Panel has no hesitation in making a finding of bad faith registration and use due to Respondent’s use of the Website, under paragraph 4(b)(iv) of the Policy, and under the Panel’s general discretion.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microsoftmvp.com> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: June 13, 2017
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