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The Panel finds that the Disputed Domain Name is confusingly similar with the Complainant’s trademark WINDOWS. The Panel further finds that this trademark has so extensive a common law reputation that it qualifies as a famous mark. It is also the subject of trademark registrations in many countries around the world including the United States of America, the Complainant’s home country and the People’s Republic of China, the Respondent’s home country.
As a result of the fame of Complainant’s mark, the domain name, consisting of Complainant’s mark and a generic term associated with a service provided by the Complainant is obviously confusingly similar.
There is absolutely no information available which would enable the Panel to find that the Respondent has rights or legitimate interests in the Disputed Domain Name. The Respondent is using a famous trademark as its domain name in order to run a commercial undertaking. Although the business which it seems to be running is not itself identical with the Complainant’s business, it is certainly possible that the Respondent may accept advertising from people who are in direct competition with the Complainant.
In addition to that consideration is the fact that the fame of the Complainant’s trademark is being used, and probably successfully used, to attract consumers who may well assume a connection with the Complainant and therefore assume that the business being conducted through the Disputed Domain Name is a substantial one with international backing. This is not a bona fide offering.
Under these circumstances, and in the absence of any evidence from the Respondent, the Panel finds that the Respondent has no rights or legitimate interest in the Disputed Domain Name.
C. Registered and Used in Bad Faith
The Respondent is also the registered owner of the domain name which is indicative of a practice of adopting well-known trademarks as its domain names. This practice has been held on many occasions to be conduct in bad faith.
The Respondent is resident in the People’s Republic of China where there is legislation making the registration as a domain name and the use of a domain name being another’s registered trademark an infringement of that trademark, and therefore conduct in bad faith.
Finally, the adoption of a famous trademark, such as WINDOWS and its use as a domain name so as to induce consumers to visit a website for commerce is an act of bad faith under paragraph 4(b)(iv) of the Policy.
Therefore, the Panel finds that the Respondent has registered and is using the Disputed Domain Name in bad faith.
7. Decision
For all the foregoing reasons, in accordance with Paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name be transferred to the Complainant.
_____________________________
Fleur Hinton
Sole Panelist
Dated: January 26, 2005
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