Microsoft Corporation v. Leopoldo Rubin Napolitano
Claim Number: FA1706001735686
Complainant is Microsoft Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Leopoldo Rubin Napolitano (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <microsoftve.com> and <microsoft-ve.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 13, 2017; the Forum received payment on June 13, 2017.
On June 14, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <microsoftve.com> and <microsoft-ve.com> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 June 14, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 5, 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@microsoftve.com, postmaster@microsoft-ve.com. Also on June 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 July 10, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a worldwide provider of software and related services.
In connection with this business, Complainant uses the MICROSOFT mark to promote the sale of its goods and services.
Complainant holds a registration for the MICROSOFT service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,198,155, registered October 20, 1998).
Respondent was once employed by Complainant.
Respondent registered the domain names <microsoftve.com> and <microsoft-ve.com> on April 4, 2017, only a matter of days after Complainant terminated Respondent’s employment.
The domain names are confusingly similar to Complainant’s MICROSOFT mark.
Respondent lacks both rights to and legitimate interests in the domain names.
Respondent has not been commonly known by either of the domain names.
Complainant has not authorized Respondent to use its MICROSOFT mark.
Respondent has failed to use the domain names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use.
Instead, Respondent uses the domain names to seek financial gain by sending email messages to third parties falsely representing that it continues to be employed by Complainant.
Respondent’s use of the domain names disrupts Complainant’s business
Respondent knew of Complainant and its rights in the MICROSOFT mark when it registered the domain names.
Respondent registered and uses the domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding in compliance with the requirements of the Policy and its attendant Rules. However, in an e-mail message addressed to the Forum, Respondent has recited as follows:
“I don’t have any problem to transfer these domain [sic] to Microsoft.”
DISCUSSION
Paragraph 4(a) of the Policy requires that, in the ordinary course, Complainant must prove each of the following in order to obtain from a Panel a decision that a domain name be transferred to it:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the same domain name has been registered and is being used by Respondent in bad faith.
Notwithstanding the foregoing, 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.”
Further, Policy Paragraph 3(a) provides for the transfer of a domain name registration upon the written instructions of the parties to a UDRP proceeding without the need for otherwise required findings and conclusions. See, for example, Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum January 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 has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See also Disney Enterprises, Inc. v. Morales, FA 475191 (Forum June 24, 2005):
[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial [sic] to forego the traditional UDRP analysis and order the transfer of the domain names.
DECISION
Respondent does not contest the material allegations of the Complaint, and, in particular, it does not contest Complainant’s request that the domain names in issue be transferred from Respondent to Complainant. Rather, in the face of Complainant’s demand that the domain names be transferred to it, Respondent has expressed in writing its willingness to surrender them. Thus the parties have effectively agreed in writing to a transfer of the domain names from Respondent to Complainant without the need for further proceedings.
Accordingly, it is Ordered that the <microsoftve.com> and <microsoft-ve.com> domain names be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: July 14, 2017
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