Google Inc. v. sebahat altun
Claim Number: FA1611001703919
Complainant is Google Inc. (“Complainant”), represented by Melissa Alcantara of Dickinson Wright PLLC, United States of America. Respondent is sebahat altun (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <googleturkiyereklamekibi.com>, registered with FBS Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 21, 2016; the Forum received payment on November 21, 2016. The Complaint was received in both Turkish and English.
On November 28, 2016, FBS Inc. confirmed by e-mail to the Forum that the <googleturkiyereklamekibi.com> domain name is registered with FBS Inc. and that Respondent is the current registrant of the name. FBS Inc. has verified that Respondent is bound by the FBS Inc. 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 December 2, 2016, the Forum served the Turkish language Complaint and all Annexes, including a Turkish language Written Notice of the Complaint, setting a deadline of December 22, 2016 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@googleturkiyereklamekibi.com. Also on December 2, 2016, the Turkish language Written Notice of the Complaint, notifying Respondent of the e-mail 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 January 3, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 has rights in the GOOGLE mark pursuant to its governmental trademark registrations held around the world—specifically with the likes of the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,806,075, registered Jan. 20, 2004). See Compl., at Attached Annex 11. Respondent’s <googleturkiyereklamekibi.com> merely adds to the GOOGLE mark the “.com” generic top-level domain (“gTLD”) and the phrase “Turkiye Reklam Ekibi,” which
translates to “Turkey Advertising Team.” See Compl., at Attached Annex 15. This phrasing describes Complainant’s business in the online advertising realm, and creates confusing similarity with the GOOGLE mark under Policy ¶ 4(a)(i).
Respondent has no rights or legitimate interests in <googleturkiyereklamekibi.com>. The GOOGLE mark appears on the resolving website, but the WHOIS does not identify Respondent as “Google” or “Google Turkiye Reklam Ekibi.” Further, Respondent uses the domain name to resolve to a website that promotes a competing advertising business, while displaying Complainant’s GOOGLE Marks and Google Partner badge on its website, invites consumers to “Advertise with Google!,” and incorporates Google’s distinctive blue-red-yellow-blue-green-red color sequence in its own logos, as if the promoted company, “Turkey Advertising Team,” is Google’s official advertising team or partner in Turkey. See Compl., at Attached Annex 13. Additionally, Respondent’s website displays links which redirect Internet users to an online retail store for pharmaceuticals—from which Respondent likely profits through affiliate fees. None of the foregoing uses represents a bona fide offering of goods or services or any legitimate noncommercial or fair use.
Respondent registered and used <googleturkiyereklamekibi.com> in bad faith. Respondent’s arrangement of the resolving website to compete with Complainant and to confuse Internet users by incorporating Complainant’s famous marks and likeness indicates that Respondent has acted in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). The links to online pharmaceuticals also tarnishes the goodwill associated with Complainant’s mark—further evidence of bad faith. Finally, Respondent likely registered <googleturkiyereklamekibi.com> with actual and/or constructive knowledge of Complainant and its rights in the GOOGLE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was created on February 14, 2015.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid, subsisting, and famous trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
The Panel also finds that, Pursuant to Rule 11(a), the language requirement has been satisfied through the Turkish language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid, subsisting, and famous trademark. Respondent arrives at the disputed domain name by merely appending the generic phrase in the Turkish language “Turkiye Reklam Ekibi,” which apparently translates to English as “Turkey Advertising Team.” It also deletes the spaces in this phrase and adds the g TLD “.com.” None of this is adequate to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s famous trademark.
Further, Respondent has no apparent rights or legitimate interests in or to the disputed domain name. Respondent has no authority or permission to register Complainant’s trademark as a domain name. Respondent is also not commonly known by the disputed domain name. Complainant asserts that the GOOGLE mark appears on the resolving website, but the WHOIS does not identify Respondent as “Google” or “Google Turkiye Reklam Ekibi.” As such, the Panel finds that Respondent is not commonly known by the disputed domain name.
The Panel further finds that Respondent has not made any bona fide offering of goods or services or any legitimate noncommercial or fair use of the disputed domain name. A lack of such rights and legitimate interests has been found where a respondent has mimicked a complainant’s website or has otherwise clearly intended to conjure some association with a complainant for commercial reasons. See Vivendi Universal Games v. Ballard, FA 146621 (FORUM Mar. 13, 2002) (stating that where the respondent copied the complainant’s website in order to steal account information from the complainant’s customers, that the respondent’s “exploitation of the goodwill and consumer trust surrounding the BLIZZARD NORTH mark to aid in its illegal activities is prima facie evidence of a lack of rights and legitimate interests in the disputed domain name”); Monsanto Co. v. Decepticons, FA0101536 (FORUM Dec. 18, 2001) (finding that the Respondent’s use of <monsantos.com> to misrepresent itself as the complainant supported a finding of bad faith). Respondent purportedly uses the domain name to resolve to a website that promotes a competing advertising business, while displaying Complainant’s GOOGLE Marks and Google Partner badge on its website, invites consumers to “Advertise with Google!,” and incorporates Google’s distinctive blue-red-yellow-blue-green-red color sequence in its own logos, as if the promoted company, “Turkey Advertising Team,” is Google’s official advertising team or partner in Turkey. See Compl., at Attached Annex 13. Additionally, Respondent’s website displays links which redirect Internet users to an online retail store for pharmaceuticals—from which Respondent likely profits through affiliate fees.
None of the foregoing uses represents a bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) and, as such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent registered and used <googleturkiyereklamekibi.com> in bad faith. Complainant contends that Respondent’s arrangement of the resolving website to compete with Complainant and to confuse Internet users by incorporating Complainant’s famous marks and likeness indicates that Respondent has acted in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). Complainant also argues that the links to online pharmaceuticals also tarnishes the goodwill associated with Complainant’s mark—further evidence of bad faith. See Compl., at Attached Annex 13. Where a respondent has been shown to have intended to profit from utilizing a complainant’s image in an attempt to compete, bad faith findings have followed. See DatingDirect.com Ltd. v. Aston, FA 593977 (FORUM Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Gardens Alive, Inc. v. D&S Linx, FA 203126 (FORUM Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”).
Accordingly, the Panel finds that Complainant has proffered sufficient evidence to support findings of both Policy ¶¶ 4(b)(iii) and (iv) bad faith.
Finally, Complainant argues that Respondent likely registered <googleturkiyereklamekibi.com> with actual knowledge of Complainant and its rights in the GOOGLE mark. Given the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s prior rights in and to the trademark GOOGLE. GOOGLE is a famous, worldwide mark and an inherently distinctive mark. As such, it is not believable that Respondent filed an application to register the disputed domain name with no prior knowledge of the GOOGLE mark. Further, the Respondent appears to have mimicked Complainant’s web site and Internet presence in the disputed domain name.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <googleturkiyereklamekibi.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: January 4, 2017
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