Google Inc. v. Sunil K, iSupport Solution / Aditi Sawant, iSupport Solution / Rohit Sharma / Vineet Sharma / Deep / Sunil K
Claim Number: FA1501001599162
Complainant is Google Inc. (“Complainant”), represented by Chantal Z. Hwang of Cooley LLP, California, USA. Respondent is Sunil K, iSupport Solution / Aditi Sawant, iSupport Solution / Rohit Sharma / Vineet Sharma / Deep / Sunil K (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <contact-gmail-support.com>, <contactgmailsupport.net>, <contactgmailsupport.org>, <gmailcustomerservice.net>, <gmailcustomerservice.org>, <gmailsupportonline.com>, <gmailtechnical.com>, <gmailtechnicalguide.com>, <gmailtechnicalsupport.net>, <gmailtechnicalsupport.org>, <gmailtechsupport.net>, <gmailtechsupport.org>, and <passwordrecoverygmail.com>, registered with BigRock Solutions Ltd; GODADDY.COM, LLC; and, PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR).
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on January 9, 2015; the National Arbitration Forum received payment on January 12, 2015.
On January 12, 2015 and January 13, 2015, BigRock Solutions Ltd; GODADDY.COM, LLC; and, PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR) confirmed by e-mail to the National Arbitration Forum that the <contact-gmail-support.com>, <contactgmailsupport.net>, <contactgmailsupport.org>, <gmailcustomerservice.net>, <gmailcustomerservice.org>, <gmailsupportonline.com>, <gmailtechnical.com>, <gmailtechnicalguide.com>, <gmailtechnicalsupport.net>, <gmailtechnicalsupport.org>, <gmailtechsupport.net>, <gmailtechsupport.org>, and <passwordrecoverygmail.com> domain names are registered with them and that Respondent is the current registrant of the names. BigRock Solutions Ltd; GODADDY.COM, LLC; and, PDR Ltd. d/b/a PublicDomainRegistry.com (R27-LROR) have verified that Respondent is bound by the registrars’ respective 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 16, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 5, 2015 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@contact-gmail-support.com, postmaster@contactgmailsupport.net, postmaster@contactgmailsupport.org, postmaster@gmailcustomerservice.net, postmaster@gmailcustomerservice.org, postmaster@gmailsupportonline.com, postmaster@gmailtechnical.com, postmaster@gmailtechnicalguide.com, postmaster@gmailtechnicalsupport.net, postmaster@gmailtechnicalsupport.org, postmaster@gmailtechsupport.net, postmaster@gmailtechsupport.org, postmaster@passwordrecoverygmail.com. Also on January 16, 2015, 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 12, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant has used its GMAIL mark extensively in connection with the provision of its electronic mail service.
Complainant holds a registration for the GMAIL mark, which is on file with the United States Patent and Trademark Office ("USPTO") (Registry No. 3,150,462, registered April 2, 2004).
Respondent registered the following domain names no earlier than April 7, 2014:
<contact-gmail-support.com>, <contactgmailsupport.net>, <gmailtechnical.com>, and the domain names <contactgmailsupport.org>, <gmailcustomerservice.net>, <gmailtechsupport.org>, <gmailcustomerservice.org>, <gmailtechsupport.net>, <gmailsupportonline.com>, <passwordrecoverygmail.com>, as well as the domain names <gmailtechnicalguide.com>, <gmailtechnicalsupport.net> and <gmailtechnicalsupport.org>.
All of these domain names are confusingly similar to Complainant’s GMAIL mark.
Respondent has never been commonly known by any of these domain names.
Complainant has not licensed or otherwise authorized Respondent to use its GMAIL trademark in any way.
Each of the disputed domain names is being used to promote “technical services” via websites that make unauthorized use of the GMAIL trademark.
Respondent uses the domain names in a phishing scam through which it seeks to retrieve personal and financial information from Internet users.
Respondent has no rights to or legitimate interests in any of the domain names.
The content of each website resolving from the contested domain names is nearly the same, and all of the domain names are shared on one of two servers.
Respondent knew of Complainant and its rights in the GMAIL trademark when it registered each of the disputed domain names.
Respondent registered and is using these disputed domain names in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of any of the domain names; and
(3) the same domain names were registered and are being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. 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(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) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP 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.”
Preliminary Issue: Multiple Respondents
Complainant alleges that the entities which control the domain names at issue are effectively controlled by the same person or entity, which is operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant alleges that each of the contested domain names is being used to promote “technical services” via websites that make unauthorized use of the GMAIL trademark. Complainant also asserts that the content of each website resolving from the contested domain names is nearly the same, and all of the domain names are shared on one of two servers. In light of these uncontroverted allegations, we conclude that Complainant may properly prosecute this proceeding with respect to all of the identified domain names.
Complainant has rights in the GMAIL trademark for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding that because a UDRP complainant had registered its mark with one or more national trademark authorities, “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or operates (here India). See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that a mark be registered in the country in which a respondent operates, it being sufficient that a UDRP complainant can demonstrate rights in a mark in some jurisdiction).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that each of the domain names here in issue is confusingly similar to Complainant’s GMAIL trademark. All of the domain names incorporate the entire GMAIL mark, merely adding various terms descriptive of aspects of Complainant’s business, plus a generic Top Level Domain (“gTLD”), either “.com” or “.net” or “.org.” These alterations of the mark, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See Experian Info. Solutions, Inc. v. Credit Research, Inc., D2002-0095 (WIPO May 7, 2002) (finding that several domain names, each incorporating a UDRP complainant’s entire mark and merely adding the term “credit,” were confusingly similar to the subject mark).
See also Nev. State Bank v. Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum Dec. 6, 2003):
It has been established that the addition of a generic top-level domain is irrelevant when considering whether a domain name is identical or confusingly similar [to the mark of a UDRP complainant] under the Policy.
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that a complainant must make a prima facie case that a respondent lacks rights to and legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006):
Complainant must first make a prima facie showing that Respond-ent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to deter-mine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the disputed domain name which are cognizable under the Policy.
We begin by noting that Complainant asserts, and Respondent does not deny, that Respondent has not been commonly known by any of the disputed domain names, and that Complainant has not licensed or otherwise authorized Respondent to use its GMAIL trademark in any way. Moreover, the pertinent WHOIS information reveals that all of the domain names were registered by individuals in India and not by any entity that has a name or identity that bears a resemblance to any of these domain names. On this record, we conclude that Respondent has not been commonly known by any of the domain names so as to have acquired rights to or legitimate interests in any of them within the meaning of Policy ¶ 4(c)(ii). See, for example, M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding, based on the relevant WHOIS information and other evidence in the record, that a UDRP respondent was not commonly known by a contested domain name, and so failed to show that it had acquired rights to or legitimate interests in that domain name as provided in Policy ¶ 4(c)(ii)).
We next observe that Complainant asserts, without objection from Respondent, that each of the domain names is being used purportedly to promote “technical services” via websites that make unauthorized use of the GMAIL trademark, and that Respondent actually uses the domain names in a phishing scam through which it seeks to retrieve personal and financial information from Internet users.
This employment of the domain names is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain names under Policy ¶ 4(c)(iii). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003):
Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel therefore finds that Complainant has satisfied the requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the contested domain names as alleged in the complaint is an attempt to capitalize on the likelihood that Internet users will be confused as to the possibility of Complainant’s association with the domain names and their resolving websites. Under Policy ¶ 4(b)(iv), this stands as evidence of Respondent’s bad faith in the registration and use of the domain names. See Velv, LLC v. AAE, FA 677922 (Nat. Arb. Forum May 25, 2006) (finding that a respondent’s use of the <arizonashuttle.net> domain name, which contained a UDRP complainant’s ARIZONA SHUTTLE mark, to attract Internet traffic to that respondent’s website offering competing travel services demonstrated bad faith registration and use of the domain name under Policy ¶ 4(b)(iv)).
And, that Respondent uses the domain names in a phishing scam through which it seeks to retrieve personal and financial information from Internet users is independent proof of its bad faith in the registration and use of the domain names. See Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006) (finding bad faith registration and use of a domain name where a respondent used the domain name fraudulently to acquire the personal financial information of a UDRP complainant’s customers).
Finally, under this head of the Policy, it is clear from the record that Respondent knew of Complainant and its rights in its GMAIL trademark when it registered each of the disputed domain names. This too stands as proof of Respondent’s bad faith in the registration of the domain names. See Yahoo! Inc. v. Butler, FA 744444 (Nat. Arb. Forum Aug. 17, 2006) (finding bad faith in the registration of a domain name where a respondent was "well-aware” of a UDRP complainant's YAHOO! mark at the time of its registration of the domain name).
For these reasons, the Panel finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the following domain names be TRANSFERRED forthwith from Respondent to Complainant: <contact-gmail-support.com>, <contactgmailsupport.net>, <contactgmailsupport.org>, <gmailtechnical.com>, <gmailcustomerservice.net>, <gmailtechsupport.org>, <gmailtechsupport.net>, <passwordrecoverygmail.com>, <gmailcustomerservice.org>, as well as the domain names <gmailsupportonline.com>, <gmailtechnicalguide.com>, <gmailtechnicalsupport.net> and <gmailtechnicalsupport.org>.
Terry F. Peppard, Panelist
Dated: February 19, 2015
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