PARTIES' CONTENTIONS:
COMPLAINANT:
The Complainant claims that the disputed domain name is confusingly similar to the Complainant’s registered trademark; that the Respondent has no rights or legitimate interests whatsoever with respect to the disputed domain name; and that the Respondent registered and is using the disputed domain name in bad faith.
The Complainant’s claims for each point are here below reported:
(1) The domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights
The disputed domain name <microsoftlivehelp.com> reproduces the Complainant's MICROSOFT trademark in its entirety with the sole addition of the generic terms “live” and “help”, thus the Complainant’s MICROSOFT trademark is undoubtedly recognizable within the disputed domain name, and the addition of the descriptive terms “live help”, which could refer to the IT sector in which the Complainant operates, does not prevent a finding of confusing similarity under the first element.
The Complainant concludes that the disputed domain name is confusingly similar to the prior registered trademark in which the Complainant has rights in satisfaction of paragraph 4(a)(i) of the Policy.
(2) The Respondent has no rights or legitimate interests in respect of the domain name
The Respondent is not a licensee or authorized agent of the Complainant and is not in any other way authorized to use Complainant’s trademarks. Specifically, the Respondent is not an authorized reseller of the Complainant’s products and has not been authorized to register and use the disputed domain name.
Upon information and belief, the Respondent is not commonly known by the disputed domain name as an individual, a business or other organization, and his family name does not correspond to MICROSOFT or the disputed domain name.
The Respondent has not provided the Complainant with any evidence of the use of, or demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services before any notice of the dispute.
The Respondent is intentionally attempting to attract, for commercial gain, Internet users to his website, by creating a likelihood of confusion: an internet user could reasonably – and wrongly – assume that the website is sponsored by, affiliated with, or otherwise approved by the legitimate rights owner, namely the Complainant.
The Respondent attempts to pass himself off as the Complainant in order to exploit the notoriety and fame of the Complainant. Indeed, the Respondent has created a website that is confusingly similar to the Complainant’s website with respect to the whole layout (for instance the blue color used), where only the Complainant’s trademarks are indicated and the Respondent reproduces as the website’s favicon a logo confusingly similar to the Complainant’s logo.
The Respondent’s look-alike website is aimed at confusing the customers about the ownership of the disputed domain name, which means that Internet users, on redirecting to the website at issue, might form the immediate impression that they are actually visiting an official website of the Complainant or one of an authorized company, instead of a website operated by a third party with no authorization to register and use the Complainant’s trademarks.
The mere registration of a domain name does not establish rights or legitimate interests in a disputed domain name.
The Respondent’s registration and use of the disputed domain name to profit from Internet user confusion is evidence of bad faith registration and use pursuant to Policy paragraph 4(b)(iv).
For all of the foregoing reasons, the Complainant concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy.
(3) Holder of the disputed domain name registers and uses the disputed domain name in bad faith
By virtue of its extensive worldwide use, the Complainant’s trademark MICROSOFT has become a well-known trademark in the IT sector, as also indicated in many UDRP decisions, and it is therefore not possible that the Respondent was unaware of the famous MICROSOFT mark at the time it registered the disputed domain name.
Furthermore, the knowledge of the MICROSOFT trademark by the Respondent at the time of the registration of the disputed domain name is demonstrated by the fact that the Respondent provides support services for the Complainant’s products and that the Respondent reproduces the Complainant’s trademarks on the website hosted at the disputed domain name.
With regards to the use in bad faith, the disputed domain name resolves to a website where the Complainant’s trademarks are misappropriated without the authorization, approval, or license of the Complainant, in an attempt to pass itself off as the Complainant’s website, and where the Respondent provides assistance to internet users for “Microsoft products and third party applications”.
The Respondent has created a website, confusingly similar to the Complainant’s website in terms of the whole layout, where only the Complainant’s trademarks are indicated, and for the favicon of the website the Respondent reproduces a logo confusingly similar to the Complainant’s trademark: a square with four small squares reproducing the same colors as those of the Complainant. Therefore, internet users, on visiting the website at issue, might think that they are actually visiting an official Complainant’s website or the one of an authorized company instead of a website operated by a third party with no authorization to register and use the Complainant’s trademarks.
The Respondent is disrupting the Complainant’s business and unfairly competing with the Complainant.
The Respondent is intentionally attempting to attract, for commercial gain, Internet users to his website or other on-line location, by creating a likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation, or endorsement of his web site or other on-line location or of a product or service on his web site or other on-line location.
The Complainant’s representative has sent a cease and desist letter to the email indicated in the WhoIs entry for the disputed domain name and to the email address listed on the website, but the Respondent did not deign to answer. Furthermore, the Complainant’s representative has received a delivery failure for the email indicated on the website.
In light of the above, the Complainant concluded that the disputed domain name was registered and is being used in bad faith in full satisfaction of paragraphs 4(a)(iii) and 4(b) of the Policy.
RESPONDENT:
In his very short response the Respondent asserts that:
- he has clearly mentioned “on the website Main page Footer and about pages” that they are an independent online repair store;
- <microsoftlivesupport.com> is his friend’s website which has been online since 2014 and has had no issues to the present day.
The Respondent goes on to ask what the procedure is to continue his independent online service support.
The Respondent sent an unsolicited email on February 15, 2021. This email and the related contents is however not taken into consideration for the reasons explained under the Procedural Factors paragraph.
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