Microsoft Corporation v. AHMED ALJAJEH / TIMTIK
Claim Number: FA1707001739235
Complainant is Microsoft Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is AHMED ALJAJEH / TIMTIK (“Respondent”), Saudi Arabia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <skyperoom.com>, registered with FastDomain Inc.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 10, 2017; the Forum received payment on July 10, 2017.
On July 14, 2017, FastDomain Inc. confirmed by e-mail to the Forum that the <skyperoom.com> domain name is registered with FastDomain Inc. and that Respondent is the current registrant of the name. FastDomain Inc. has verified that Respondent is bound by the FastDomain Inc. 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 July 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 3, 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@skyperoom.com. Also on July 14, 2017, the 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 August 7, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that, founded in 1975, it is a worldwide leader in software, services and solutions that help people and businesses realize their full potential. Skype is a wholly-owned subsidiary of Complainant. Complainant uses the SKYPE mark in conjunction with its real-time messaging and voice technology. Complainant registered the SKYPE mark in the United States in 2005. Additionally, Complainant registered the SKYPE mark with multiple government agencies throughout North and South America, Europe, Asia, Africa, and Australia. The mark is famous.
According to Complainant, the disputed domain name is confusingly similar to its SKYPE mark because it incorporates the mark in its entirety, adding the generic term “room” and the “.com” generic top level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name. Complainant has not authorized or licensed Respondent to use the SKYPE mark in any regard, nor is Respondent affiliated with Complainant. Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. The disputed domain name resolves to a website displaying Complainant’s logo and links to third party websites unrelated to Complainant’s business, presumably for Respondent’s financial gain. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. The disputed domain name attracts internet users to Respondent’s website for commercial gain, creating confusion as to Respondent’s affiliation with Complainant. Respondent registered the domain name with actual knowledge of Complainant and its rights to the SKYPE mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark SKYPE, with rights dating back to 2005. The mark is famous.
The disputed domain name was registered in 2014.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain name points to a website displaying Complainant’s logo and links to third party websites unrelated to Complainant’s business; those links generate click-through revenue for Respondent.
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 disputed domain name is confusingly similar to Complainant’s SKYPE mark because it incorporates the mark in its entirety, adding the generic term “room” and the “.com” gTLD. Confusing similarity exists where a disputed domain name contains a complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (ForumJan. 21, 2016). As such, the Panel finds that the alterations to Complainant’s mark in Respondent’s domain name are insufficient to differentiate the domain name from the mark pursuant to Policy ¶ 4(a)(i)). See also Disney Enter. v. Kudrna, FA 686103 (Forum June 2, 2006).
Complainant has not authorized or licensed Respondent to use the SKYPE mark in any regard, nor is Respondent affiliated with Complainant. Respondent is not commonly known by the disputed domain name. A respondent is not commonly known by the disputed domain name where there is no evidence in the record, including the WHOIS information, suggesting that the respondent is commonly known by the disputed domain name. See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006). WHOIS information associated with this case identify Respondent as “AHMED ALJAJEH” of “TIMTIK.” Therefore, because nothing in [the respondent’s] WHOIS information implies that [Respondent] is ‘commonly known by’ the disputed domain name, the Panel finds that Respondent is not commonly known by the disputed domain name.
Respondent has not made a bona fide offering of goods or services, or a legitimate non-commercial or fair use of the domain. The disputed domain name resolves to a website displaying Complainant’s logo and links to third party websites unrelated to Complainant’s business, presumably for Respondent’s financial gain. When a “[r]espondent is using a confusingly similar domain name to redirect users to a webpage with unrelated hyperlinks, that [r]espondent has no other rights to the domain name, and . . . [r]espondent is not making a bona fide offering or a legitimate noncommercial or fair use.” Materia, Inc. v. Michele Dinoia, FA1507001627209 (Forum Aug. 20, 2015). Hence, the Panel finds that Respondent’s attempt to divert Internet users who are looking for products relating to Complainant’s famous mark to a website unrelated to the mark does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it constitute a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Priceline.com LLC v. levesque, bruno, FA1506001625137 (Forum July 29, 2015).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for his use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, as already noted, the disputed domain name resolves to a webpage displaying Complainant’s logo and links to third parties unrelated to Complainant’s business. The site generates click-through revenue. Thus the disputed domain name attracts internet users to Respondent’s website for commercial gain, creating confusion as to Respondent’s affiliation with Complainant. Panels have found that a respondent had acted in bad faith under Policy ¶ 4(b)(iv), where it used the disputed domain name to host a variety of hyperlinks, unrelated to the complainant’s business, through which the respondent presumably commercially gained. See Dovetail Ventures, LLC v. Klayton Thorpe, FA1506001625786 (Forum Aug. 2, 2015). Therefore, the Panel finds that Respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to Complainant and to generate click-through revenue constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See also Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Forum Jan. 4, 2007).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <skyperoom.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 7, 2017
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