Microsoft Corporation v. Shii Splat
Claim Number: FA2205001995742
Complainant is Microsoft Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Shii Splat (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mojangsupport.net>, registered with Namecheap, Inc.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 10, 2022; the Forum received payment on May 10, 2022.
On May 10, 2022, Namecheap, Inc. confirmed by e-mail to the Forum that the <mojangsupport.net> domain name is registered with Namecheap, Inc. and that Respondent is the current registrant of the name. Namecheap, Inc. has verified that Respondent is bound by the Namecheap, 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 May 11, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 31, 2022 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@mojangsupport.net. Also on May 11, 2022, 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 June 4, 2022, 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 is a worldwide leader in software, services and solutions that help people and businesses realize their full potential. MINECRAFT is a video game that was initially released in May of 2009 and widely released in November of 2011 by Swedish game publisher, Mojang AB. Beginning in 2011, the MINECRAFT game started winning numerous awards, including five awards during the 2011 Game Developer’s Conference, the largest gathering of game developers in the world, as well as winning “Best Downloadable Game Award” in 2011 from Game Developers Choice Awards. As of October of 2014, over 60 million copies of MINECRAFT had been sold worldwide, making it the best-selling PC game to date and the third best-selling video game of all time. In November of 2014, Complainant completed its acquisition of Mojang, including all intellectual property rights to MINECRAFT for $2.5 billion. As of June of 2016, over 100 million copies of MINECRAFT had been sold worldwide and by January of 2018, that number increased to 144 million copies worldwide with a monthly user base of 74 million players. Complainant asserts rights in the MOJANG mark based its registration in the United States in 2016. The mark is registered elsewhere around the world.
Complainant alleges that the disputed domain name is confusingly similar to its MOJANG mark because it incorporates the mark in its entirety, merely adding the generic/descriptive term “support” and the “.net” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is neither licensed nor authorized to use Complainant’s MOJANG mark and is not commonly known by the disputed domain name. Respondent makes use of a privacy shield. Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to engage in an email phishing scheme. Specifically, Respondent uses the disputed domain name to send emails purporting to be Mojang Studios, advising users that there has been suspicious activity on their account and they need to verify their account information. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent uses the disputed domain name in furtherance of an email phishing scheme. Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the MOJANG mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark MOJANG and uses it in connection with a popular video game.
Complainant’s registration of its mark dates back to 2016.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name in furtherance of a phishing scheme; the phishing emails display Complainant’s mark and distinctive logo.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The disputed domain name incorporates Complainant’s MOJANG mark in its entirety, merely adding the generic/descriptive term “support” and the “net” gTLD. The addition of generic or descriptive terms and gTLDs to a mark does not distinguish the disputed domain name from the mark incorporated therein per Policy ¶ 4(a)(i). See Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word “advisors” and the gTLD “.com” did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)). Therefore, the Panel finds that the <mojangsupport.net> domain name is confusingly similar to Complainant’s MOJANG mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its MOJANG mark. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information for the disputed domain name lists the registrant as “Shii Splat.” Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to engage in an email phishing scheme. Specifically, Complainant provides evidence showing that Respondent uses the disputed domain name to send emails purporting to be Mojang Studios, advising users that there has been suspicious activity on their account and they need to verify their account information; the phishing emails display Complainant’s mark and distinctive logo. Use of a disputed domain name in furtherance of an email phishing scheme neither a bona fide offering of goods and services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum Feb. 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its 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 name.
Indeed, as already noted, Respondent uses the disputed domain name in furtherance of an email phishing scheme. Use of a disputed domain name in furtherance of an email phishing scheme is considered disruptive to a complainant’s business and can demonstrate bad faith pursuant to Policy ¶ 4(b)(iii) and/or Policy ¶ 4(b)(iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); see also Microsoft Corporation v. Devon Davies FA 1880158 (Forum Feb. 18, 2020) (finding the use of <account-mojang.com> to send email messages purporting to be Mojang and to mimic the Complainant was sufficient to show registration and use in bad faith). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) and/or Policy ¶ 4(b)(iv).
Further, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the phishing emails display Complainant’s mark and distinctive logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mojangsupport.net> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 6, 2022
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