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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Microsoft Corporation v. Charlie Brown
Case No. D2001-0362
1. The Parties
Complainant: Microsoft Corporation
One Microsoft Way
Redmond, Washington 98052-6399, USA
Represented By: Arnold & Porter
Suzanne V. Wilson, Esq.
Lorelei D. Ritchie, Esq.
Parag Patel, Esq.
777 South Figueroa Street, 44th Floor
Los Angeles, California 90017-5844
Respondent: Charlie Brown
810 Hwy 548
Conway, South Carolina 24527 USA
2. The Domain Name(s) and Registrar(s)
The Domain Name in dispute is <microosoft.com>.
The Registrar for the disputed Domain Name is:
Network Solutions, Inc.
505 Huntmar Park Drive
Herndon, VA 20170-5139
3. Procedural History
This dispute is to be resolved in accordance with the Uniform Policy For Domain Name Dispute Resolution (the "Policy") and Rules (the "Rules") approved by the Internet Corporation for Assigned Names and Numbers (ICANN) on October 24, 1999, and the World Intellectual Property Organization Arbitration and Mediation Center's Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Center"; the "Supplemental Rules").
The Complaint was filed on March 14, 2001. On March 19, 2001, Network Solutions, Inc. confirmed that the Registrant of the disputed domain name was the Respondent and that Network Solutions' 5 Service Agreement is in effect.
On March 20, 2001, the Center commenced the Administrative Proceeding and forwarded a copy of the Complaint to Respondent, the administrative contact, and technical contact via post, facsimile and e-mail. Respondent did not file a response by April 8, 2001, and a Notification of Default was issued on April 11, 2001.
The Administrative Panel submitted a Declaration of Impartiality and Independence, and the Center proceeded to appoint the Panel on May 1, 2001. This Panel finds the Center has adhered to the Policy and Rules in administering this case.
This decision was originally due May 14, 2001.
4. Factual Background
Complainant, Microsoft Corporation, is a Washington, USA corporation with its principal place of business in Redmond, Washington, USA.
The Complainant is a well-known, worldwide provider of computer software and related products and services. Complainant's products and services include computer operating systems, client/server applications, business and computer productivity applications, software programming tools, interactive media programs, Internet platform and development tools, computer input devices, on-line information and entertainment services, electronic commerce and computer publications.
In connection with its goods and services, the Complainant has registered the MICROSOFT mark in the United States Patent and Trademark Office in numerous classes of goods and services. Complainant has also registered in the United States Patent and Trademark Office trademarks comprising the word MICROSOFT and other formatives for various goods and services. With respect to the MICROSOFT registrations, Complainant has registered the mark for such goods and services as telecommunication services in Class 38, providing information concerning travel and travel related services over computer networks and global communications networks in Class 39, providing information in the fields of business and commerce over computer mark networks and global communications networks in Class 35, and computers and component parts therefor, computer peripherals, computer keyboards, computer video control devices, computer software in Class 9 as examples.
The Respondent, Charlie Brown, registered the domain name <microosoft.com> on May 12, 2000.
5. Parties' Contentions
The Complainant contends that:
- The Complainant has spent substantial time, effort and money advertising and promoting the MICROSOFT mark throughout the United States and the world. As a result, the MICROSOFT mark has become world famous and the Complainant has developed an enormous amount of goodwill in the mark.
- Complainant has established an Internet website which can be reached through domain names comprised of the MICROSOFT mark, including <microsoft.com> and <microsoft.net>. Complainant's website allows computer users throughout the United States and the world to access information regarding Complainant and its products and to use and enjoy the Internet services provided by Complainant.
- The disputed domain name is virtually identical to the famous MICROSOFT mark, the only difference being an extra "o" in the disputed domain name.
- The disputed domain name is confusingly similar to Complainant's own domain name, and trademarks and is likely to cause confusion among Complainant's customers.
- Respondent has no connection or affiliation with Complainant and has not received any license or consent express or implied to use the MICROSOFT mark in a domain name and, therefore, has no legitimate interest in the disputed domain name.
- The Respondent is intentionally diverting customers of the Complainant through the use of the disputed domain name which contains a common typo which those customers might enter by mistake.
- Respondent registered the disputed domain name after Complainant's MICROSOFT mark was internationally famous.
- There can be no question of Respondent's awareness of the fame of the MICROSOFT mark when it registered the disputed domain name.
- Respondent registered the domain name <microosoft.com> to increase the traffic to its website by wrongfully capitalizing on Microsoft's famous trademark.
- Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with Complainant's MICROSOFT trademark as to the source, sponsorship, affiliation or endorsement of its website or location of a product or service on its website.
- Respondent has used the <microosoft.com> domain name to divert Internet traffic away from Complainant and into its own website in order to benefit from the enormous level of Internet traffic from Internet users seeking the official Microsoft website <microsoft.com>.
- While the website at issue no longer contains commercial content, Respondent still maintains complete control over it and Respondent may resume activities capitalizing upon the famous MICROSOFT mark thereby confusing and frustrating Microsoft's customers.
- Respondent registered the <microosoft.com> domain name in bad faith.
Respondent has not filed a response to the Complaint and is in default. By failing to file a response, Respondent has not denied Complainant's contentions.
6. Discussion and Findings
In order for Complainant to prevail and have the disputed domain name <microosoft.com> transferred to itself, Complainant must prove the following:
(Policy ¶ 4(a)(i-iii)):
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name was registered and is being used in bad faith.
The Complainant owns numerous United States trademark registrations for the MICROSOFT mark some claiming use since 1975. Complainant has also registered the domain names <microsoft.com> and <microsoft.net> through which consumers can access information regarding Microsoft and its products and to use the Internet services provided by Complainant. This Panel has noted that the <microsoft.com> domain name was created on May 2, 1991, according to Network Solution's WhoIs record.
The disputed domain name, <microosoft.com> differs by misspelling the Complainant's established trademark rights in the word MICROSOFT by the addition of the letter "o" between "micro" and "soft".
Disputed domain names with misspelled variations of trademarks have been held to be "confusingly similar" in many WIPO cases. For example, in American Online Inc. v. John Zuccarini (WIPO Case No. D2000-1495) it is stated that "the mere addition of a minor misspelling . . . does not create a new or different mark in which the Respondent has rights. Instead it results in a domain name that is confusingly similar to the Complainant's mark".
In the Panel's view, the word "microosoft" in the disputed domain name is both phonetically and visually the same as Complainant's trademark.
Based on this view, and on the previous decisions dealing with misspellings, the Panel finds the disputed domain name is confusingly similar to the Complainant's trademark.
The Panel further finds Respondent has no rights or legitimate interests in the disputed domain name. It is not refuted that Respondent has no connection or affiliation with Complainant and has not received any license or consent to use the MICROSOFT mark in a domain name or in any other manner. Nor has it been demonstrated that the Respondent is commonly known by or has acquired rights in the domain name. Finally, the Respondent's use of the disputed domain name deliberately diverts Internet users interested in Complainant or its products and services who either do not know the correct spelling or unintentionally make an error when typing in the Complainant's mark or name. This Panel finds that the Respondent has not offered any evidence of non-commercial or fair use of the disputed domain name to refute the Complainant's allegations.
According to the Complaint, the Respondent originally used the disputed domain name to attract Internet users to its website containing prominent commercial banner advertisements and hyper-links to third party websites which offered various commercial products and services for sale. This use constituted bad faith attracting Internet users to a website for commercial gain. More recently, the website appears to be inactive with only a statement that "Coming soon…The Anti-Microsoft Website. A non-profit site dedicated to exposing Microsoft's unfair trade practices". As noted earlier, the Respondent has provided no evidence that the current website is being employed for any legitimate fair use.
The Respondent's domain name misspelling of the Complainant's trademark is designed to confuse and take advantage of Internet users who do not know the correct spelling of the Complainant's mark or name or who mistyped it. Prior WIPO cases have found that such conduct alone creates a prima facie inference of bad faith. See Google Inc. v. Namerental.com and Leonard Bensonoff (WIPO Case No. D2001-0060). Similarly, in Alta Vista Company v. Saeid Yomtombian (WIPO Case No. D2000-0937) the Panelist found "the use of misspellings alone is sufficient to prove bad faith under paragraph 4(b)(iv) of the Policy because the Respondent has used these names intentionally to attract, for commercial gain Internet users to his website by making a likelihood of confusion with the Complainant's mark".
Finally, the lack of a response to the Complaint creates an inference that the Respondent could not provide any good faith use of the disputed domain name. Therefore, the Panel finds that the Respondent registered and used the disputed domain name in bad faith.
The Panel concludes that the domain name <microosoft.com> is confusingly similar to Complainant's trademark, that the Respondent lacks any right or legitimate interest in the domain name and that the domain name was registered and used in bad faith. Therefore, this Panel orders that the disputed domain name <microosoft.com> be transferred to Complainant, Microsoft Corporation.
Nels T. Lippert
Dated: August 16, 2001