Google LLC v. Privacy Protection
Claim Number: FA2110001970877
Complainant is Google LLC ("Complainant"), represented by James R. Davis, II of Perkins Coie LLP, District of Columbia, USA. Respondent is Privacy Protection ("Respondent"), Illinois, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gooqleplay.com>, registered with Hosting Concepts B.V. d/b/a Registrar.eu.
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 October 27, 2021; the Forum received payment on October 27, 2021.
On October 28, 2021, Hosting Concepts B.V. d/b/a Registrar.eu confirmed by email to the Forum that the <gooqleplay.com> domain name is registered with Hosting Concepts B.V. d/b/a Registrar.eu and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Registrar.eu has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Registrar.eu 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 November 1, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 22, 2021 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@gooqleplay.com. Also on November 1, 2021, 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 November 29, 2021, 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 operates the widely used GOOGLE search engine and offers other products and services. Complainant's GOOGLE mark ranks among the world's most valuable global brands. Complainant uses the GOOGLE PLAY mark in connection with software related to digital content and related online retail services. Complainant owns numerous trademark registrations for GOOGLE and GOOGLE PLAY in the United States and other jurisdictions, in both standard character and design form.
Respondent registered the disputed domain name <gooqleplay.com> via a privacy registration service in August 2021. Complainant characterizes the domain name as an example of typosquatting. The domain name resolves to a webs page advertising the domain name for sale for $280. Complainant states that Respondent is not commonly known by the disputed domain name and is not licensed or otherwise authorized to use the GOOGLE and GOOGLE PLAY marks.
Complainant contends on the above grounds that the disputed domain name <gooqleplay.com> is confusingly similar to its GOOGLE and GOOGLE PLAY marks; 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 <gooqleplay.com> corresponds to Complainant's GOOGLE PLAY mark, with the space omitted, a letter "Q" substituted for the second "G," and the ".com" top-level domain appended thereto. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Google LLC v. Jonathon Santos / Diamond Asset Holdings, Ltd + LLC, FA 1968716 (Forum Nov. 5, 2021) (finding <qooglemaps.com> confusingly similar to GOOGLE MAPS); Google LLC v. John Harris / YT, FA 1906135 (Forum Aug. 26, 2020) (finding <gooqle.email> confusingly similar to GOOGLE); Google LLC v. Vu Quoc Hop, FA 1816927 (Forum Dec. 17, 2018) (finding <goolgeplay.site> confusingly similar to GOOGLE PLAY). 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 the sole apparent purpose of advertising the domain name itself for sale. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Twitch Interactive, Inc. v. Solimul Hasan Khan, FA 1935907 (Forum Apr. 1, 2021) (finding lack of rights or interests in similar circumstances); United Services Automobile Association v. Cyan Yo, FA 1931638 (Forum Mar. 15, 2021) (same).
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)(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 used a privacy registration service to register a domain name incorporating Complainant's well-known GOOGLE mark and corresponding to Complainant's GOOGLE PLAY mark, with the introduction of a typographical error; and is using it for the sole apparent purpose of advertising the domain name itself for sale. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Google LLC v. Jonathon Santos / Diamond Asset Holdings, Ltd + LLC, supra (finding bad faith in similar circumstances); Twitch Interactive, Inc. v. Solimul Hasan Khan, supra (same); United Services Automobile Association v. Cyan Yo, supra (same). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gooqleplay.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: November 30, 2021
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