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August 26, 2010 / Nate Harris

Microsoft Corp. v. Mickaël Newton

Summary of Microsoft Corp. v. Mickaël Newton
(Nat. Arb. Forum Claim No. 1332788)
Filed June 29, 2010; Decided August 21, 2010 (Panelist: Houston Putnam Lowry)

Domain Names: <kinectxbox.com> and <xbox-kinect.com>

kinectxbox.com

kinectxbox.com

The Parties

You know who the Complainant Microsoft Corp. is. It began using its XBOX mark in 1998 for TV and video converters, then in 2001 launched its video game systems under the XBOX brand. As of 2008, Microsoft had sold more than 19 million XBOX 360 consoles. Microsoft officially introduced the KINECT sensor (an accessory for XBOX 360) on June 13,2010 (though the name had received press prior to that date).

Mickaël Newton is a French guy who registered the disputed domains on June 12, 2010 (a day before the launch of KINECT). Mr. Newton did not formally respond to the complaint, but he did send an email response claiming that his “will is not to corrupt the Microsoft branding to do a porn website or something like that that, my will is to work for you, like other Xbox fans websites.”

Procedural

In view of Mr. Newton’s failure to respond, “[t]he Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory.”

Identical or Confusingly Similar

The Panel recognizes that Microsoft has rights in its XBOX mark, and has applied to register the mark KINECT. The Panel further finds that the disputed domain names are confusingly similar to Microsoft’s XBOX mark.

Rights or Legitimate Interests

The Panel notes that, judging from the WHOIS registration information for the domains and other information, Mr. Newton is not commonly known by <kinectxbox.com> or <xbox-kinect.com>. Mr. Newton is also not affiliated with or licensed by Microsoft to use the mark.

Though Mr. Newton claimed to be running a fan site, “no such fan site seems to exist.” Rather, the disputed domain names redirect users to a page that promotes email services that compete with Microsoft’s products. Thus, Mr. Newton has no rights or legitimate interest in the mark.

Registered and Used in Bad Faith

The Panel infers that the use of the disputed domain names “results in a disruption of Complainant’s e-mail service and business online. Therefore, the Panel finds Respondent registered and used the [disputed] domain names in bad faith[.]” The Panel also finds that the use of the disputed domain names to redirect Internet users probably results in financial gain to Mr. Newton, and is further evidence of registration and use in bad faith. Finally, the Panel agrees that the registration and use of the domain names on the eve of Microsoft’s launch of its KINECT brand reflects “opportunistic bad faith.”


Commentary

This was a pretty straightforward decision. However, I found it odd that the Panel considered the disruption of Microsoft’s services to be evidence of bad faith registration. This is quite a more lenient standard than the one applied by a WIPO Panelist in Rosa Maria Clarà Pallarès v. Domains by Proxy, Inc. / Domain Discreet / Dennis Heinz (WIPO Case No. D2010-0867) [blogged Tuesday here].

I also thought the Panel let Microsoft off easy by inferring that Mr. Newton’s use of the disputed domains resulted in a disruption of Microsoft’s business. Couldn’t (and shouldn’t) Microsoft have proven that in order to prevail? Since when are injuries inferred?

Epilogue

8/25/2010: The domains have not yet been transferred.

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