MICROS Systems, Inc. v. Walkercity
Claim Number: FA0503000444485
PARTIES
Complainant
is MICROS Systems, Inc. (“Complainant”), represented by Michael
H. Tow, 7031 Columbia Gateway Drive, Columbia, MD 21046-2289. Respondent is Walkercity (“Respondent”), represented by David W. Centner, of Law, Weathers and Richardson, P.C.,
800 Bridgewater Place, 333 Bridge Street NW, Grand Rapids, MI 49504.
REGISTRAR AND DISPUTED DOMAIN NAME
The
domain name at issue is <microssystems.net>,
registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide.
PANEL
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.
David
P. Miranda, Esq. as Panelist.
PROCEDURAL HISTORY
Complainant
submitted a Complaint to the National Arbitration Forum electronically on March
21, 2005; the National Arbitration Forum received a hard copy of the Complaint
on March 25, 2005.
On
March 21, 2005, Melbourne It, Ltd. d/b/a Internet Names Worldwide confirmed by
e-mail to the National Arbitration Forum that the domain name <microssystems.net> is registered
with Melbourne It, Ltd. d/b/a Internet Names Worldwide and that the Respondent
is the current registrant of the name. Melbourne
It, Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound
by the Melbourne It, Ltd. d/b/a Internet Names Worldwide 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
April 1, 2005, a Notification of Complaint and Commencement of Administrative
Proceeding (the “Commencement Notification”), setting a deadline of April 21,
2005 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@microssystems.net by e-mail.
A
timely Response was received and determined to be complete on April 18, 2005.
On April 25, 2005, pursuant to Complainant’s request to
have the dispute decided by a single-member
Panel, the National Arbitration Forum
appointed David P. Miranda, Esq. as Panelist.
RELIEF SOUGHT
Complainant
requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A.
Complainant
The
domain name that is the subject of this Complaint is microssystems.net. According to the WhoIs record maintained by
the applicable domain name registrar, the domain name at issue, www.microssystems.com,
was registered by “walkercity,” with a postal address at 4243 Remembrance Road,
NW, Walker, MI 49544, USA. The
administrative contact is identified as “David Himmler” at the same postal
address, with telephone number: +1 616-735-6286.
Complainant
contends that the Registration information is false. The Walker, Michigan postal address is that of city hall for the
City of Walker, Michigan. The telephone
number is that of the City of Walker Ice and Fitness Center, also in Walker,
Michigan, but with a different street address.
Complainant has not located anyone named David Himmler living in Walker
Michigan.
The
domain name was registered and the site established purporting to be operated
by MICROS Systems, Inc., or an authorized office location of MICROS. MICROS has never had, and does not currently
have, an authorized office location in San Ysidro, California (or Walker,
Michigan). The name www.microssystems.net,
and the content and design of the website, were intended to convey the
impression that it was a legitimate website of MICROS Systems, Inc.
One
of MICROS’s suppliers, Tiger Direct, received a purchase order purporting to be
from MICROS, with the “ship-to” and “bill-to” addresses as the San Ysidro
address referenced above. The order was
for 5 Toshiba laptops.
By
using the domain name, the Registrant intentionally attempted to engage in a
fraudulent purchase of computer equipment from one of MICROS’s suppliers, by
creating the appearance of legitimacy for its operation through the use of the
website.
The
Complainant requests that the Panel issue a decision that the domain-name
registration be transferred.
B.
Respondent
Respondent
does not dispute Complainant’s claims with respect to the domain name at issue here in which the Complainant has rights, and
further does not dispute and hereby consents to the requested relief. ICANN Rule 3(b)(ix)(1); ICANN Policy ¶
4(a)(i).
Respondent should NOT be considered as having rights or legitimate interests in respect of
the domain name that is the subject of the complaint.] ICANN Rule 3(b)(ix)(2); ICANN Policy ¶
4(a)(ii).
Neither the City of Walker
nor any authorized officer, agent, or employee participated in the registration
of the domain name at issue in this matter.
The City of Walker does
not currently have, nor has it ever had, an employee by the name of “David
Himmler.”
The Registrant of the
domain name at issue did not have the authority to use Respondent’s name, the
City of Walker, nor the address of the City of Walker’s municipal offices, or
the address of the adjoining City of Walker Ice and Fitness Center
Respondent
The City of Walker, Michigan did not register or use the subject domain name
and consents to and does not object to the relief requested by Complainant.
C.
Additional Submissions
None
FINDINGS
Transfer of the domain name is warranted
based upon the clear proof of fraudulent conduct in the registration and
Respondent’s consent to the relief requested.
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.
In its
Response, Respondent states that it “consents to and does not object to the
relief, transfer of the <miscrossystems.net> domain name
requested by Complainant.” The Panel
finds that where such a stipulation is made, the Panel may grant the relief
requested with respect to the domain name.
See Boehringer
Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9,
2003) (transferring the domain name registration where Respondent stipulated to
the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc.,
FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In this case, the parties have both
asked for the domain name to be transferred to the Complainant . . . Since
the requests of the parties in this case are identical, the Panel may recognize
the common request, and it is not required to make findings of fact or of
compliance (or not) with the Policy.”).
DECISION
There
being consent to the relief requested in the Complaint, under the ICANN Policy,
the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <microssystems.net>
domain name be TRANSFERRED to Complainant.
David P. Miranda, Esq., Panelist
Dated: May 11, 2005
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page