Software giants fail to get domain name SAP-Microsoft.com.
What happens when two of the world’s biggest software companies, Microsoft (NSDQ: MSFT) and SAP (NYSE: SAP), team up to do battle? They lose.
A World Intellectual Property Organization panel found that an Israeli man should be able to keep the domain name SAP-Microsoft.com. But it was a close call, with the arbitrator finding that he wasn’t quite convinced that the domain name was registered in bad faith.
You can blame SAP’s lawyer for that (SAP took the lead on the case and received Microsoft’s permission to pursue it). According to the panel’s decision, SAP argued that the domain owner responded to SAP’s offer of $1,000 for the domain name by asking for $9,500. But SAP left out a detail — that the $9,500 offer was in response to a separate communication by SAP asking the domain owner to name a price to expedite the matter.
Before leaving this topic, it is right to point out that, as claimed by the Respondent, the Complainant’s failure to include in its evidence the Complainant’s representatives’ email of October 9, 2008 gave a very different slant to that correspondence. The Respondent’s figure of USD 9,500 was not a response to the Complainant’s opening offer of USD 1000, but a response to the Complainant’s representatives’ invitation to name a figure. In the event nothing has turned on it, but if parties are going to exhibit correspondence, they should be careful to ensure that either it is complete or, if it is not, that the selection fairly illustrates the complete picture.
Had SAP been upfront about its communications, it might have tipped the scales in its favor. But this shadow of doubt may be why the arbitrator decided the domain shouldn’t be handed over.
robb says
I am surprised they let the guy keep that domain, seemed like a no-brainer to lose with Microsoft in the name. Seems like it almost always goes the opposite of what you think the outcome will be.
Gerry says
This is a shock and a surprise. Naturally it is bound for appeal and perhaps civil court.
Quite a decision but if I were the owner, I would not call it a slam dunk yet and hi-fiveing my colleagues.
Any name with Microsoft in the name exists solely because of a company named Microsoft.
I hope you have a follow up later.
Rob Sequin says
Complainant needs to prove
1. confusingly similar
2. no legitimate use
3. used or registered in bad faith.
Seems like all three were proved. I don’t see how leaving out an email voids all three of the above points.
Enrico Schaefer says
The web site does not contain and advertising or other commercial purpose. One has to wonder why SAP did not demand the web site back and let Respondent make the demand for an inflated price. This was simply poor strategy by the SAP folks. Their lawyers should have been involved 9assuming they were not) and would have told the business side how NOT to approach someone they believe is cybersquatting.
Johnny says
@Rob….that is not right….especially #3. It is not “or”.
The complainant needs to prove “bad faith registration AND use”. If either is missing than the complainant loses.
There are many lawyers who’d love to get rid of the “and” but that is what saves many respondents.
Rob Sequin says
It is my understanding that if a domain is registered in bad faith, it can be taken.
OR
if a domain is used in bad faith (showing similar ads, offering for sale, etc) then the domain can be taken.
WIPO does not need both to take a domain.
I am not a lawyer but I have read about enough of these to believe it is OR, not AND on #3.
Ramiro Canales says
I am a domain name lawyer who successfully defended a UDRP challenge involving one of my company’s domain names.
The following fact was what tipped the ruling in favor of the Respondent:
“The mere fact that the Respondent registered the Domain Name with knowledge of the Complainant’s rights is not enough. If his intention was as he says it was, namely to provide a forum for the exchange of information in relation to the products of the Complainant and Microsoft, the Complaint should fail. It may not give him a right or legitimate interest in respect of the Domain Name, but it is not cybersquatting, the activity, which the Policy was designed to address.”
Andrew Allemann says
Gerry – I doubt he’s hi-fiving. As I wrote, it was a very close decision.
gerry says
Andrew, I am aware of what you wrote. It was basically a cautionary statement and the emphasis was on your point.
Sorry if it did not come across that way.
Andrew Allemann says
No problem Gerry, just wanted to make sure it was clear.
Steve M says
He would have been better off losing…as Micro/SAP are likely to make things a whole lot worse for him.
Duane says
The owner would be better off going on a deal with SAP. In the long run he will eventually loose this name and it will be costly.
There is no way SAP or Microsoft is going to let this run. I think that Microsoft is now going to go after it and they will not make the mistake SAP did.
This was a interesting decision.
Wilfredo says
They found bad faith on the Complainant….
That’s What I See….