Google Inc. v. Angel Ivanov
Complainant is Google Inc. (“Complainant”), represented by Jonathan S. Batchelor of Dickson Wright PLLC, Arizona, USA. Respondent is Angel Ivanov (“Respondent”), Bulgaria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <adsenseaccount.online>, registered with NameCheap, 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 August 18, 2016; the Forum received payment on August 18, 2016.
On August 19, 2016, NameCheap, Inc. confirmed by e-mail to the Forum that the <adsenseaccount.online> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 August 24, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 13, 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@adsenseaccount.online. Also on August 24, 2016, 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 Forum transmitted to the parties a Notification of Respondent Default.
On September 22, 2016, 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 registered its ADSENSE mark with the United States Patent and Trademark Organization (“USPTO”) (Reg. No. 2,881,856, registered Sept. 7, 2004), and therefore holds rights in the mark—using it in connection with online advertisements. See Compl., at Attached Annex 10. Respondent’s <adsenseaccount.online> domain name is confusingly similar to Complainant’s mark, because it merely adds the descriptive term “account” and generic top-level domain (“gTLD”) “.online”, to the fully incorporated ADSENSE mark.
Respondent holds no rights or legitimate interests in the disputed domain name. Respondent has not received a license or any other permission from Complainant to use its ADSENSE mark, and Respondent is not commonly known by the disputed domain name. Respondent is not currently making active use of the disputed domain name, and previously used it to divert Internet users looking for Complainant. See Compl., at Attached Annex 12 (previously offering, “Get your Adsense account now!”). Such use by Respondent does not constitute a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor does it constitute a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
Respondent has registered and is using the <adsenseaccount.online> domain name in bad faith. Respondent has attempted to pass itself off as Complainant or an affiliate of Complainant, in order to disrupt and create confusion amongst Internet users. Respondent commercially gains from this practice by offering similar services or illegitimate versions of Complainant’s services. Respondent clearly had actual notice of Complainant’s world-famous ADSENSE mark when it registered the disputed domain name. This is most clearly evidenced by the featuring of Complainant’s marks on the resolving website of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. The Respondent registered the domain on May 23, 2016.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration of the disputed domain name.
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 with the Complainant’s valid and subsisting trademark rights in or to the ADSENSE mark. The Complainant has adequately plead its interest in the trademark.
Respondent arrives at the disputed domain name by merely adding the descriptive term “account” and generic top-level domain (“gTLD”) “.online”, to the Complainant’s trademark ADSENSE. This is insufficient to distinguish the disputed domain name from the Complainant’s mark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark ADSENSE.
Additionally, the Panel finds that the Respondent has no rights or legitimate interests in or to the disputed domain name. It appears that has never been licensed or otherwise authorized to use its ADSENSE mark, and that Respondent is not commonly known by the disputed domain name. The WHOIS information for the disputed domain name lists “Angel Ivanov” as the registrant. See Compl., at Attached Annex 13. The Panel, therefore, finds that the Respondent is not known by the domain name and that there is no evidence in the record to suggest otherwise.
Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The Panel further finds that that Respondent is not using the disputed domain name to make a bona fide offering of goods and services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). Complainant contends that Respondent is currently not making an active use of <adsenseaccount.online>, and that Respondent was previously using the disputed domain name to divert Internet users looking for Complainant’s business. The evidence of inactive use seems to be screen shots of the resolving website of the disputed domain name accessed on June 16, 2016. See Compl., at Attached Annex 12. Panels have held that failure to actively use a domain name or using a domain name to divert internet users does not confer any rights or legitimate interests. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (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).”).
As such, the Panel finds that as Respondent has failed to make a bona fide offering of goods and services and is not using the disputed domain name for a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii), it lacks any rights or legitimate interests in or to the disputed domain name.
The Panel finds that Respondent registered and is using the <adsenseaccount.online> disputed domain name in bad faith. The Panel finds that, apparently, Respondent’s primary purpose for registering the domain name was to disrupt Complainant’s business. Complainant argues that the disputed domain name incorporated the ADSENSE mark to purposely divert Internet users to competing and illegitimate services. Annex 12, the screenshots of the disputed domain, indicate that Respondent sought to sell ADSENSE publisher accounts. The Panel finds that Respondent is a competitor attempting to disrupt the Complainant’s business. As such, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain name.
Additionally, the Panel finds that Respondent is attempting to capitalize on the goodwill of the ADSENSE mark by commercially gaining from Internet users’ confusion as to the source, sponsorship, affiliation, or endorsement of the <adsenseaccount.online> disputed domain name. Complainant argues that Respondent’s resolving website was an attempt to pass itself off as Complainant, and that Respondent presumably received revenue from offering competing services. Complainant submits evidence of the resolving website and calls attention to the purported offers of Complainant’s services that are “100% approved,” as well as the repeated use of Complainant’s own marks. See Compl., at Attached Annex 12. Using a disputed domain name to attract customers in this manner amounts to bad faith use and registration.
Therefore, the Panel finds that Respondent has engaged in bad faith use and registration by attempting to confuse Internet users by suggesting an affiliation with Complainant and offering similar or competing services is clear and in violation of Policy ¶ 4(b)(iv).
Finally, Complainant argues that Respondent had actual notice of its rights in the ADSENSE mark at the time it registered the disputed domain name. Complainant claims that the ADSENSE mark has achieved world-wide fame. See Compl., at Attached Annex 7–9. Additionally, Complainant states that Respondent’s use of the disputed domain name to offer Complainant’s services while featuring Complainant’s marks is evidence of actual knowledge under Policy ¶ 4(a)(iii). See Compl., at Attached Annex 12.
Given the fame of Complainant’s mark and the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s rights in and to the ADSENSE trademark at the time it registered the disputed domain name. Accordingly, the Panel finds that the 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 <adsenseaccount.online> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: September 26, 2016
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