Google LLC v. Host Master / Transure Enterprise Ltd
Claim Number: FA1906001849072
Complainant is Google LLC ("Complainant"), represented by Brendan J Hughes of Cooley LLP, Washington, DC, USA. Respondent is Host Master / Transure Enterprise Ltd ("Respondent"), Delaware, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <figoogle.com>, registered with Above.com Pty Ltd.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 21, 2019; the Forum received payment on June 21, 2019.
On June 25, 2019, Above.com Pty Ltd. confirmed by email to the Forum that the <figoogle.com> domain name is registered with Above.com Pty Ltd. and that Respondent is the current registrant of the name. Above.com Pty Ltd. has verified that Respondent is bound by the Above.com Pty Ltd. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On June 27, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 17, 2019 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@figoogle.com. Also on June 27, 2019, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On July 19, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules, and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant was founded in 1997. Complainant operates the widely used GOOGLE search engine and offers a wide range of other products and services, including a telecommunications service called GOOGLE FI. Complainant's GOOGLE mark ranks among the world's most valuable global brands. Complainant owns numerous trademark registrations for GOOGLE and related marks dating back to 1999 in jurisdictions throughout the world, including the United States.
The disputed domain name <figoogle.com> was registered in July 2016. The domain name is being used for a web page consisting of links related to search engines and Complainant, with the statement "This domain name may be for sale" at the top of the page. Complainant states that Respondent has not been authorized or licensed to use Complainant's mark and is not commonly known by the domain name.
Complainant contends on the above grounds that the disputed domain name <figoogle.com> is confusingly similar to its GOOGLE mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a), and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <figoogle.com> incorporates Complainant's registered GOOGLE trademark, adding the letters "fi" at the beginning and appending the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Google Inc. v. FooMeme / Marshall Coffy, FA 1372553 (Forum Mar. 22, 2011) (finding <googlefiber.net> and <googlefiber.org> confusingly similar to GOOGLE); Google Inc. v. Wing Wah, FA 1347070 (Forum Oct. 29, 2010) (finding <googlef.com> confusingly similar to GOOGLE); Time Warner Inc. v. AOLMEMBERS.COM, FA 881337 (Forum Feb. 13, 2007) (finding <cnnfi.com> confusingly similar to CNN); Citigroup Inc. v. SZK.com, FA 672087 (Forum May 24, 2006) (finding <citifi.com> confusingly similar to CITI). Accordingly, the Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for a page consisting of what the Panel infers are pay-per-click links to websites related to Complainant, its products and services, or those of Complainant's competitors. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Google LLC v. Raj Shekhar, FA 1779541 (Forum Apr. 27, 2018) (finding lack of rights or interests in similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent registered a domain name incorporating Complainant's well-known mark without authorization, and is using it to attract traffic to a web page consisting of links and a statement suggesting that the domain name is available for sale, presumably for Respondent's commercial gain. Such conduct is indicative of bad faith under the provisions cited above. See, e.g., Google Inc. v. NURINET / Noorinet / NURINET, FA 1502299 (Forum Sept. 24, 2013) (finding bad faith based upon use of domain name incorporating mark for web page featuring pay-per-click links to competing goods and services). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <figoogle.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 22, 2019
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