DECISION

 

Microsoft Corporation v. isidro Morell Melendez / dragon

Claim Number: FA2309002063277

 

PARTIES

Complainant is Microsoft Corporation ("Complainant"), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is isidro Morell Melendez / dragon ("Respondent"), USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <dragon-speech.com>, <dragon-supports.com> and <dragons-helps.com>, registered with GoDaddy.com, LLC.

 

PANEL

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.

 

Alan L. Limbury, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 25, 2023. Forum received payment on September 25, 2023.

 

On September 25, 2023, GoDaddy.com, LLC confirmed by e-mail to Forum that the <dragon-speech.com>, <dragon-supports.com> and <dragons-helps.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 September 26, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 16, 2023 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@dragon-speech.com, postmaster@dragon-supports.com, postmaster@dragons-helps.com. Also on September 26, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On October 17, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Alan L. Limbury as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Founded in 1975, Complainant, Microsoft Corporation, is a worldwide leader in software, services and solutions that help people and businesses realize their full potential. Complainant provides speech recognition software under the DRAGON mark. The software was initially developed in the 1980s by Dragon Systems and later acquired by Nuance Communications, Inc. ("Nuance"). Nuance was acquired by Microsoft in 2022. The software is especially helpful for persons with disabilities as it allows them to communicate via a computer or mobile device.

 

Complainant has rights in the DRAGON mark through numerous trademark registrations, including with the United States Patent and Trademark Office ("USPTO"). Respondent's <dragon-speech.com>, <dragon-supports.com> and <dragons-helps.com> domain names are identical or confusingly similar to Complainant's DRAGON mark.

 

Respondent has no rights or legitimate interests in the <dragon-speech.com>, <dragon-supports.com> and <dragons-helps.com> domain names since Respondent is not affiliated with Complainant in any way, is not licensed to use Complainant's DRAGON mark, and is not an authorized vendor, supplier, or distributor of Complainant's goods and services. Respondent is not commonly known by the DRAGON mark. Respondent does not use the domain names for any bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain names to divert Internet users to misleading websites that adopt the DRAGON mark, display what appear to be official DRAGON branded products with the DRAGON logo, and duplicate images and text from Complainant's official Dragon site. Additionally, each of the sites has a "Contact Us" page which says "Get in touch with the Dragon sales or support team" which makes each of the sites appear to be an official Dragon site.

 

Respondent registered the <dragon-speech.com>, <dragon-supports.com> and <dragons-helps.com> domain names in bad faith with actual knowledge of Complainant's rights in the DRAGON mark and uses them in bad faith by promoting Respondent's competing online stores in an attempt to commercially benefit, unfairly and opportunistically, from the goodwill associated with Complainant's mark.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has established all the elements entitling it to relief.

 

DISCUSSION

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 the domain name should be cancelled or transferred:

 

(i)                      the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(ii)                      Respondent has no rights or legitimate interests in respect of the domain name; and

(iii)                      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 as 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').

 

Identical and/or Confusingly Similar

 

Complainant has shown that it has rights in the DRAGON mark through numerous registrations, including with the USPTO (e.g., Reg. No. 3,633,223, registered on June 2, 2009 and assigned to Complainant by Nuance on December 15, 2022). The Panel finds each of Respondent's <dragon-speech.com>, <dragon-supports.com> and <dragons-helps.com> domain names to be confusingly similar to Complainant's mark, adding an additional "s" in one case to the mark and adding only a hyphen and the generic words "speech, "support," and "helps", none of which distinguishes any of the domain names from the mark. The inconsequential ".com" generic top-level domain ("gTLD") may be ignored. See, for example, Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.

 

Complainant has established this element.

 

Rights or Legitimate Interests

 

Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain names for purposes of paragraph 4(a)(ii) of the Policy, i.e.

 

(i)         before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain names or names corresponding to the domain names in connection with a bona fide offering of goods or services; or

 

(ii)         Respondent (as an individual, business or other organization) has been commonly known by the domain names, even if Respondent has acquired no trademark or service mark rights; or

 

(iii)         Respondent is making a legitimate noncommercial or fair use of the domain names, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.

 

The <dragon-speech.com>, <dragon-supports.com> and <dragons-helps.com> domain names were registered on November 20, 2020, December 27, 2020 and January 24, 2023 respectively, many years after the registration of Complainant's DRAGON mark. Each resolves to a website displaying Complainant's DRAGON mark, product images and text copied from Complainant's official website. 

 

These circumstances, together with Complainant's assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain names on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <dragon-speech.com>, <dragon-supports.com> and <dragons-helps.com> domain names. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.

 

The Panel finds that Respondent has no rights or legitimate interests in respect of the domain names.

 

Complainant has established this element.

 

Registration and Use in Bad Faith

 

Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain names in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:

 

(iv)                      by using the domain names, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant's mark as to the source, sponsorship, affiliation, or endorsement of Respondent's website or location or of a product or service on its website or location.

 

The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant's DRAGON mark when Respondent registered the <dragon-speech.com>, <dragon-supports.com> and <dragons-helps.com> domain names and that Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's websites, by creating a likelihood of confusion with Complainant's mark as to the source of Respondent's websites and of the goods promoted on those websites. This demonstrates registration and use in bad faith to attract users for commercial gain under Policy ¶ 4(b)(iv).

 

Complainant has established this element.

 

DECISION

Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <dragon-speech.com>, <dragon-supports.com> and <dragons-helps.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Alan L. Limbury, Panelist

Dated: October 19, 2023.