Google Inc. v. Domain Administrator
Claim Number: FA1201001422926
Complainant is Google Inc. (“Complainant”), represented by Anne H. Peck of Cooley LLP, California, USA. Respondent is Domain Administrator (“Respondent”), Hong Kong.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <geoolge.com>, <gggoogle.com>, <ggolge.com>, <ggoole.com>, <go0gle.com>, <gogelmail.com>, <goggleemail.com>, <gogglemails.com>, <gologle.com>, <googemail.com>, <googer.com>, <googlae.com>, <googlecalander.com>, <googlede.com>, <googledevice.com>, <googleen.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googletr.com>, <googlev.com>, <googlp.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolggle.com>, <goolgle.com>, <goolglemail.com>, <gooogly.com>, and <gougle.com>, registered with Moniker Online Services LLC.
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.
Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 5, 2012; the National Arbitration Forum received payment on January 6, 2012.
On January 9, 2012, Moniker Online Services LLC confirmed by e-mail to the National Arbitration Forum that the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <ggoole.com>, <go0gle.com>, <gogelmail.com>, <goggleemail.com>, <gogglemails.com>, <gologle.com>, <googemail.com>, <googer.com>, <googlae.com>, <googlecalander.com>, <googlede.com>, <googledevice.com>, <googleen.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googletr.com>, <googlev.com>, <googlp.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolggle.com>, <goolgle.com>, <goolglemail.com>, <gooogly.com>, and <gougle.com> domain names are registered with Moniker Online Services LLC and that Respondent is the current registrant of the names. Moniker Online Services LLC has verified that Respondent is bound by the Moniker Online Services LLC 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 January 11, 2012, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 31, 2012 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@geoolge.com, postmaster@gggoogle.com, postmaster@ggolge.com, postmaster@ggoole.com, postmaster@go0gle.com, postmaster@gogelmail.com, postmaster@goggleemail.com, postmaster@gogglemails.com, postmaster@gologle.com, postmaster@googemail.com, postmaster@googer.com, postmaster@googlae.com, postmaster@googlecalander.com, postmaster@googlede.com, postmaster@googledevice.com, postmaster@googleen.com, postmaster@googlehomepage.com, postmaster@googleparking.net, postmaster@googlepictures.com, postmaster@googletr.com, postmaster@googlev.com, postmaster@googlp.com, postmaster@googlse.com, postmaster@googlu.com, postmaster@googne.com, postmaster@googole.com, postmaster@googu.com, postmaster@goolggle.com, postmaster@goolgle.com, postmaster@goolglemail.com, postmaster@gooogly.com, and postmaster@gougle.com. Also on January 11, 2012, the 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On February 3, 2012, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <geoolge.com>, <gggoogle.com>, <ggolge.com>, <ggoole.com>, <go0gle.com>, <gogelmail.com>, <goggleemail.com>, <gogglemails.com>, <gologle.com>, <googemail.com>, <googer.com>, <googlae.com>, <googlecalander.com>, <googlede.com>, <googledevice.com>, <googleen.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googletr.com>, <googlev.com>, <googlp.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolggle.com>, <goolgle.com>, <goolglemail.com>, <gooogly.com>, and <gougle.com> domain names are confusingly similar to Complainant’s GOOGLE mark.
2. Respondent does not have any rights or legitimate interests in the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <ggoole.com>, <go0gle.com>, <gogelmail.com>, <goggleemail.com>, <gogglemails.com>, <gologle.com>, <googemail.com>, <googer.com>, <googlae.com>, <googlecalander.com>, <googlede.com>, <googledevice.com>, <googleen.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googletr.com>, <googlev.com>, <googlp.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolggle.com>, <goolgle.com>, <goolglemail.com>, <gooogly.com>, and <gougle.com> domain names.
3. Respondent registered and used the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <ggoole.com>, <go0gle.com>, <gogelmail.com>, <goggleemail.com>, <gogglemails.com>, <gologle.com>, <googemail.com>, <googer.com>, <googlae.com>, <googlecalander.com>, <googlede.com>, <googledevice.com>, <googleen.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googletr.com>, <googlev.com>, <googlp.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolggle.com>, <goolgle.com>, <goolglemail.com>, <gooogly.com>, and <gougle.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Google Inc., is the owner of the GOOGLE mark. Complainant uses its mark in connection with a variety of Internet services such as search engines, mail, calendar, picture sharing, and maps. Complainant owns trademark registrations for the GOOGLE mark (e.g., Reg. No. 1,451,705 registered September 28, 2000) in China with the State Intellectual Property Office (“SIPO”) that pre-date Respondent’s registration of the disputed domain names.
Respondent, Domain Administrator, registered the <geoolge.com> domain name on April 7, 2004; the <gggoogle.com> domain name on November 12, 2003; the <ggolge.com> domain name on August 29, 2002; the <ggoole.com> domain name on January 16, 2005; the <go0gle.com> domain name April 29, 2004; the <gogelmail.com>, <goggleemail.com>, <gogglemails.com>, and <goolglemail.com> domain names on April 2, 2004; the <gologle.com> domain name on December 12, 2004; the <googemail.com> domain name on March 31, 2004; the <googer.com> domain name on December 18, 2002; the <googlae.com> domain name on August 20, 2004; the <googlecalander.com> domain name on October 20, 2010; the <googlede.com> domain name on August 12, 2005; the <googledevice.com> domain name on August 20, 2010; the <googleen.com> domain name April 2, 2005; the <googlehomepage.com> domain name on October 10, 2005; the <googleparking.net> domain name on October 6, 2007; the <googlepictures.com> domain name on August 13, 2003; the <googletr.com> domain name on April 23, 2003; the <googlev.com> domain name on May 6, 2004; the <googlp.com> domain name on June 19, 2003; the <googlse.com> domain name on November 14, 2003; the <googlu.com> domain name on July 13, 2003; the <googne.com> domain name June 16, 2004; the <googole.com> domain name on August 24, 2002; the <googu.com> domain name May 18, 2004; the <goolggle.com> domain name on April 5, 2004; the <goolgle.com> domain name on August 24, 2002; the <gooogly.com> domain name on December 9, 2003; and the <gougle.com> domain name January 15, 2002. The <geoolge.com>, <gggoogle.com>, <ggolge.com>, <go0gle.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googlev.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolgle.com>, <goolglemail.com>, and <gougle.com> domain names redirect users to <video-rewardz.com> which offers Internet users prizes for taking a short survey and providing personal information such as cell phone numbers and e-mail addresses as well as signing up for text messaging plans with a monthly fee. The <googlecalander.com>, <goolggle.com>, <gogglemails.com>, <goggleemail.com>, <gogelmail.com>, <gooogly.com>, <googletr.com>, <googlp.com>, and <ggoole.com> domain names are used to display pay-per-click links. Though Complainant does not argue that these links are competitive, the screenshots Complainant provides demonstrates that the links offer goods and services similar to those which Complainant offers under the GOOGLE mark. Complainant contends that the <googer.com>, and <googleen.com>, domain names resolve to websites which feature pay-per-click advertising links. Although Complainant failed to provide evidence of this use, the Panel has checked the domain names and determined that the use Complainant alleges is accurate.
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."
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(e), 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 (Nat. Arb. 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.”).
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.
Complainant contends that it has rights in the GOOGLE mark. Complainant asserts that it owns trademark registrations for the GOOGLE mark (e.g., Reg. No. 1,451,705 registered September 28, 2000) with SIPO. Panels have found that, regardless of the location of the parties, when a complainant registers a mark with a national trademark authority it gives the complainant rights in that mark. See Miller Brewing Co. v. Miller Family, FA 104177 (Nat. Arb. Forum Apr. 15, 2002) (finding that the complainant had established rights to the MILLER TIME mark through its national trademark registrations); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction). The Panel therefore finds that Complainant has rights in the GOOGLE mark pursuant to Policy ¶ 4(a)(i).
Complainant next contends that the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <ggoole.com>, <go0gle.com>, <gogelmail.com>, <goggleemail.com>, <gogglemails.com>, <gologle.com>, <googemail.com>, <googer.com>, <googlae.com>, <googlecalander.com>, <googlede.com>, <googledevice.com>, <googleen.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googletr.com>, <googlev.com>, <googlp.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolggle.com>, <goolgle.com>, <goolglemail.com>, <gooogly.com>, and <gougle.com> domain names are confusingly similar to the GOOGLE mark. Respondent makes some of the following changes to each of the disputed domain names: the addition of descriptive terms, the addition of letters or a number, the deletion of letters and misspelling of the mark, and the addition of the generic top-level domain (“gTLD”) “.net” or “.com.” The Panel finds that Respondent’s addition of descriptive terms to some of the disputed domain names does not distinguish the disputed domain names from the GOOGLE mark. See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business); see also Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark). The Panel also finds that the addition of letters or a number to some of the disputed domain names fails to differentiate the disputed domain names from Complainant’s mark. See Am. Online, Inc. v. Oxford Univ., FA 104132 (Nat. Arb. Forum Mar. 19, 2002) (finding several domain names that added the numeral “7” or the term “seven” to the complainant’s AOL mark were confusingly similar to the mark under Policy ¶ 4(a)(i)); see also Am. Online, Inc. v. Amigos On Line RJ, FA 115041 (Nat. Arb. Forum Aug. 28, 2002) (finding that the <aolrj.com> domain name was confusingly similar to the complainant’s AOL mark because “…the addition of a string of indiscriminate letters to a famous mark in a second level domain does not differentiate the domain name from the mark.”). The Panel finds also that the deletion of letters and misspelling of the GOOGLE mark in the disputed domain names does not negate a finding of confusing similarity. See Belkin Components v. Gallant, FA 97075 (Nat. Arb. Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter “i” in the complainant's mark with the letter “e”); see also Neiman Marcus Group, Inc. v. Party Night, Inc., FA 114546 (Nat. Arb. Forum July 23, 2002) (finding that the <neimanmacus.com> domain name was a simple misspelling of the complainant’s NEIMAN MARCUS mark and was a classic example of typosquatting, which was evidence that the domain name was confusingly similar to the mark). Finally, the Panel finds that the addition of a gTLD to each of the disputed domain names is irrelevant for the purposes of a determination of whether the domain names are confusingly similar. See Katadyn N. Am. v. Black Mountain Stores, FA 520677 (Nat. Arb. Forum Sept. 7, 2005) (“[T]he addition of the generic top-level domain (gTLD) “.net” is irrelevant for purposes of determining whether a domain name is identical to a mark.”); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). The Panel therefore finds that the disputed domain names are all confusingly similar to the GOOGLE mark pursuant to Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) is met.
Complainant argues that Respondent has neither rights nor legitimate interests in the disputed domain name. Once a complainant makes a prima facie case in support of its allegations the burden shifts to the respondent to provide evidence to the contrary. See Domtar, Inc. v. Theriault, FA 1089426 (Nat. Arb. Forum Jan. 4, 2008) (“It is well established that, once a complainant has made out a prima facie case in support of its allegations, the burden shifts to respondent to show that it does have rights or legitimate interests pursuant to paragraph 4(a)(ii) of the Policy.”); see also Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech. Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (“Complainant has made a prima facie showing that Respondent lacks rights to the Domain Name. The threshold for making such a showing is quite low, since it is difficult to produce evidence to support a negative statement. Here, Complainant has alleged that Respondent does not own any rights in the terms STARWOOD or STARWOODS, and that Respondent’s use of the Domain Name is not a fair one. These unsupported assertions, though sparse, are sufficient to make a prima facie showing in regard to the legitimacy element.”). The Panel finds that Complainant has made a prima facie case in support of its assertions. Respondent thus bears the burden of disproving the claims which Complainant has made against it. Respondent, however, has failed to submit a Response to the Complaint. Given this, the Panel will proceed making all reasonable inferences from the available information. See Do the Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“Failure of a respondent to come forward to [contest complainant’s allegations] is tantamount to admitting the truth of complainant’s assertions in this regard.”); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“[Rule 14(b)] expressly provide[s] that the Panel ‘shall draw such inferences’ from the Respondent’s failure to comply with the rules ‘as it considers appropriate.”). As such, the Panel will review the record for any circumstances which may confer rights or legitimate interests on Respondent under Policy ¶ 4(c).
Complainant argues that Respondent is not commonly known by the disputed domains. Complainant argues that Respondent is not authorized or licensed to use the GOOGLE mark. Additionally, the WHOIS record for the disputed domain names lists “Domain Administrator” as the domain name registrant. Panels have found that the contentions of the complainant, along with the WHOIS record for a disputed domain name, is demonstrative of whether the respondent is commonly known by the disputed domain name. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). The Panel finds that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii).
Complainant asserts that the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <go0gle.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googlev.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolgle.com>, <goolglemail.com>, and <gougle.com> domain names are not used for either a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant contends that the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <go0gle.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googlev.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolgle.com>, <goolglemail.com>, and <gougle.com> domain names redirect users to <video-rewardz.com> which offers Internet users prizes for taking a short survey and providing personal and financial information such as cell phone numbers and e-mail addresses as well as signing up for text messaging plans with a monthly fee. Complainant argues that this is an elaborate phishing scheme which Respondent uses to obtain personal information. In Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004), and Allianz of Am. Corp. v. Bond, FA 690796 (Nat. Arb. Forum June 12, 2006), the panels held that the use of a disputed domain name to operate a phishing scheme to obtain personal or financial information is not a protected use. Therefore, the Panel finds that Respondent’s use of the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <go0gle.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googlev.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolgle.com>, <goolglemail.com>, and <gougle.com> domain names is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Complainant contends that the <googlecalander.com>, <goolggle.com>, <gogglemails.com>, <goggleemail.com>, <gogelmail.com>, <gooogly.com>, <googletr.com>, <googlp.com>, <ggoole.com>, <googer.com> and <googleen.com> domain names are used to display pay-per-click links. Though Complainant does not argue that these links are competitive, the screenshots Complainant provides demonstrate that the links offer goods and services similar to those which Complainant offers under the GOOGLE mark, such as those related to e-mail, calendar, and photo-sharing services. The Panel notes that Complainant failed to provide screenshots of the <googlp.com> and <ggoole.com> domain names, but the Panel has checked the domain names and determined that the use Complainant alleges is accurate. Panels have found that the use of a disputed domain name to display competing links is not a use which provides the complainant with rights or legitimate interests in the disputed domain name. See Disney Enters., Inc. v. Kamble, FA 918556 (Nat. Arb. Forum Mar. 27, 2007) (holding that the operation of a pay-per-click website at a confusingly similar domain name was not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Therefore, the Panel finds that Respondent makes neither a Policy ¶ 4(c)(i) bona fide offering of goods or services nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the disputed domain names.
Complainant argues that Respondent’s lack of rights and legitimate interests is further demonstrated by Respondent’s typosquatting. Complainant contends that the <geoolge.com>, <ggolge.com>, <ggoole.com>, <go0gle.com>, <gogelmail.com>, <goggleemail.com>, <gogglemails.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlp.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolggle.com>, <goolgle.com>, <goolglemail.com>, <gooogly.com>, <gougle.com>, and <googer.com> domain names are simply misspellings of the GOOGLE mark, in some cases by a single letter. Panels have held that engaging in typosquatting is evidence of the respondent’s lack of rights and legitimate interests. See Microsoft Corp. v. Domain Registration Philippines, FA 877979 (Nat. Arb. Forum Feb. 20, 2007) (concluding that by registering the <microssoft.com> domain name, the respondent had “engaged in typosquatting, which provides additional evidence that [the] respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”); see also IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”). Therefore, the Panel finds that Respondent’s lack of rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii) is evidenced by the fact that it engaged in typosquatting.
The Panel finds that Policy ¶ 4(a)(ii) is met.
Complainant asserts that the <googlecalander.com>, <goolggle.com>, <gogglemails.com>, <goggleemail.com>, <gogelmail.com>, <gooogly.com>, <googletr.com>, <googlp.com>, <ggoole.com>, <googer.com>, and <googleen.com> domain names domain names are disruptive. Complainant contends that the <googlecalander.com>, <goolggle.com>, <gogglemails.com>, <goggleemail.com>, <gogelmail.com>, <gooogly.com>, <googletr.com>, <googlp.com>, <ggoole.com>, <googer.com>, and <googleen.com> domain names are used to display pay-per-click links. Though Complainant does not argue that these links are competitive, the screenshots Complainant provides demonstrates that the links offer goods and services similar to those which Complainant offers under the GOOGLE mark. The panels in Red Hat, Inc. v. Haecke, FA 726010 (Nat. Arb. Forum July 24, 2006), and Tesco Pers. Fin. Ltd. v. Domain Mgmt. Servs., FA 877982 (Nat. Arb. Forum Feb. 13, 2007), found that the registration and use of a disputed domain name to display links to website which compete with Complainant are disruptive. Therefore, the Panel finds that he <googlecalander.com>, <goolggle.com>, <gogglemails.com>, <goggleemail.com>, <gogelmail.com>, <gooogly.com>, <googletr.com>, <googlp.com>, <ggoole.com>, <googer.com>, and <googleen.com> domain names are disruptive. Complainant contends that the <googlecalander.com>, <goolggle.com>, <gogglemails.com>, <goggleemail.com>, <gogelmail.com>, <gooogly.com>, <googletr.com>, <googlp.com>, <ggoole.com>, <googer.com>, and <googleen.com> domain names are disruptive pursuant to Policy ¶ 4(b)(iii).
Complainant contends that the <googlecalander.com>, <goolggle.com>, <gogglemails.com>, <goggleemail.com>, <gogelmail.com>, <gooogly.com>, <googletr.com>, <googlp.com>, <ggoole.com>, <googer.com>, and <googleen.com> domain names were registered and are used to take commercial advantage of Internet users mistakes as to the source, sponsorship, or affiliation of the disputed domain names. The disputed domain names are confusingly similar to Complainant’s GOOGLE mark. Upon entering the resolving website, Internet users are faced with links, which the Panel infers Respondent is compensated for, that offer goods and services on the Internet, such as in the e-mail, calendar, photo-sharing, and maps industry, which compete with Complainant. Complainant contends that the <googlecalander.com>, <goolggle.com>, <gogglemails.com>, <goggleemail.com>, <gogelmail.com>, <gooogly.com>, <googletr.com>, <googlp.com>, <ggoole.com>, <googer.com>, and <googleen.com> domain names are products of Respondent’s intent to take commercial advantage off of Internet users’ confusion and mistakes as to the source, sponsorship or affiliation of the disputed domain names pursuant to Policy ¶ 4(b)(iv). The Panel finds accordingly. See AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes); see also T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that the registration and use of a domain name confusingly similar to a complainant’s mark to direct Internet traffic to a commercial “links page” in order to profit from click-through fees or other revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)).
Complainant contends that the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <go0gle.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googlev.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolgle.com>, <goolglemail.com>, and <gougle.com> domain names were also registered and are being used in order to take commercial advantage of the confusion Respondent created as to the source or sponsorship of the domain names. Complainant asserts that the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <go0gle.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googlev.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolgle.com>, <goolglemail.com>, and <gougle.com> domain names resolve to the <video-rewardz.com> domain name’s website where Internet users are promised prizes in exchange for the completion of a short survey where they are required to provide personal information and enroll in a text messaging program which has a monthly fee. These disputed domain names are confusingly similar to the GOOGLE mark thus allowing Internet users to infer that the domain names are operated by Complainant. Upon being redirected to the <video-rewardz.com> domain name, the Internet users will become confused as to whether Complainant is the genuine source of the disputed domain names. Presuming that Complainant must be affiliated with the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <go0gle.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googlev.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolgle.com>, <goolglemail.com>, and <gougle.com> domain names, some of the Internet users will complete the survey, provide Respondent with personal information, and enroll in the text messaging service which allows Respondent to gain revenue each month. Therefore the Panel finds that Respondent’s registration and use of the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <go0gle.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googlev.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolgle.com>, <goolglemail.com>, and <gougle.com> domain names was done in order to take commercial advantage of Internet users’ mistakes as to the source of the disputed domain names pursuant to Policy ¶ 4(b)(iv). See Perot Sys. Corp. v. Perot.net, FA 95312 (Nat. Arb. Forum Aug. 29, 2000) (finding bad faith where the domain name in question is obviously connected with the complainant’s well-known marks, thus creating a likelihood of confusion strictly for commercial gain); see also Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
Complainant next alleges that the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <go0gle.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googlev.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolgle.com>, <goolglemail.com>, and <gougle.com> domain names were registered and are being used in bad faith by operation of a phishing scheme to obtain Internet users’ personal and financial information. Complainant claims that the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <go0gle.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googlev.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolgle.com>, <goolglemail.com>, and <gougle.com> domain names redirect Internet users to <video-rewardz.com> which offers Internet users prizes for taking a short survey and providing personal information such as cell phone numbers and e-mail addresses as well as signing up for text messaging plans with a monthly fee. Panels have held that the operation of a phishing scheme is evidence of bad faith. See Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers); see also Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). The Panel finds that Respondent’s intent to obtain personal and financial information through a phishing scheme on the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <go0gle.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googlev.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolgle.com>, <goolglemail.com>, and <gougle.com> domain names demonstrates Respondent’s bad faith registration and use of these disputed domain names under Policy ¶ 4(a)(iii).
Complainant asserts that its GOOGLE mark was famous, well-known, and widely-used prior to Respondent’s registration of the disputed domain names. While panels have concluded that constructive notice is not sufficient to support a bad faith finding, the Panel finds that, due to the fame of Complainant's mark, Respondent had actual knowledge of the mark and Complainant's rights. Thus, the Panel holds that Respondent registered the disputed domain names in bad faith under Policy ¶ 4(a)(iii). See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration).
Complainant lastly argues that Respondent’s bad faith registration and use of the <geoolge.com>, <ggolge.com>, <ggoole.com>, <go0gle.com>, <gogelmail.com>, <goggleemail.com>, <gogglemails.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlp.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolggle.com>, <goolgle.com>, <goolglemail.com>, <gooogly.com>, <gougle.com>, and <googer.com> domain names is clear because of Respondent’s engagement in typosquatting schemes. Complainant asserts that many of the disputed domain names are simple misspellings, in some cases by a single character, of Complainant’s GOOGLE mark. The panels in Nextel Commc’ns Inc. v. Geer, FA 477183 (Nat. Arb. Forum July 15, 2005), and Internet Movie Database, Inc. v. Temme, FA 449837 (Nat. Arb. Forum May 24, 2005), held that typosquatting is evidence of bad faith. Therefore, the Panel finds that Respondent's registration of the domain names in dispute constitutes bad faith because the domain names are merely typosquatted versions of Complainant’s GOOGLE mark pursuant to Policy ¶ 4(a)(iii).
The Panel finds that Policy ¶ 4(a)(iii) is met.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <geoolge.com>, <gggoogle.com>, <ggolge.com>, <ggoole.com>, <go0gle.com>, <gogelmail.com>, <goggleemail.com>, <gogglemails.com>, <gologle.com>, <googemail.com>, <googlae.com>, <googlecalander.com>, <googlede.com>, <googledevice.com>, <googlehomepage.com>, <googleparking.net>, <googlepictures.com>, <googletr.com>, <googlev.com>, <googlp.com>, <googlse.com>, <googlu.com>, <googne.com>, <googole.com>, <googu.com>, <goolggle.com>, <goolgle.com>, <goolglemail.com>, <gooogly.com>, <gougle.com>, <googer.com>, and <googleen.com> domain names be TRANSFERRED from Respondent to Complainant.
Karl V. Fink (Ret.), Panelist
Dated: February 10, 2012
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