Google Inc. v. Keshav Kumar / Keshav domains and hosting
Claim Number: FA1609001693103
Complainant is Google Inc. ("Complainant"), represented by Jonathan S. Batchelor of Dickson Wright PLLC, Arizona, USA. Respondent is Keshav Kumar / Keshav domains and hosting ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <googlenetmarketing.com>, registered with Name.com, Inc.
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 September 9, 2016; the Forum received payment on September 9, 2016.
On September 12, 2016, Name.com, Inc. confirmed by email to the Forum that the <googlenetmarketing.com> domain name is registered with Name.com, Inc. and that Respondent is the current registrant of the name. Name.com, Inc. has verified that Respondent is bound by the Name.com, 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 September 12, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 3, 2016 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@googlenetmarketing.com. Also on September 12, 2016, 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 October 10, 2016, 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 was founded in 1997. Complainant operates the widely used GOOGLE search engine and offers a wide range of Internet-related products and services, including online advertising services. Complainant's GOOGLE mark has been consistently ranked among the world's most valuable global brands. Complainant owns numerous trademark registrations for the GOOGLE mark dating back to 1998 in jurisdictions throughout the world, including the United States and India.
Respondent registered the disputed domain name <googlenetmarketing.com> in December 2012. It resolves to a website titled "Google Net Marketing," with fields for a username and password. Complainant states that the website triggers repeated malicious software warnings, and alleges that the domain name is also being used in email messages in connection with a "phishing" scheme to obtain sensitive information from Complainant's clients by posing as Complainant.
Complainant states that it has not authorized Respondent to register or use the disputed domain name, and that Respondent is not affiliated with, associated with, or otherwise endorsed by Complainant, and is not commonly known by any name containing Complainant's mark. Complainant contends on these grounds that the disputed domain name is confusingly similar to a mark in which it has rights; that Respondent has no rights or legitimate interests in the domain name; and that the 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 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 disputed domain name <googlenetmarketing.com> corresponds to Complainant's registered GOOGLE trademark, with the phrase "net marketing" (sans the space) and the ".com" top-level domain appended thereto. These additions are insufficient to distinguish the domain names from Complainant's mark. See, e.g., Google Inc. v. Mr. Racha Ravinder, D2009-1454 (WIPO Jan. 7, 2010) (finding <googlenetbiz.com> confusingly similar to GOOGLE); Google Inc. v. Joel Goldstein, FA 1292239 (Forum Dec. 16, 2009) (finding <googlemarketing101.com> confusingly similar to GOOGLE); Google Inc. v. Absolutee Corp. Ltd. c/o DNS Manager, FA 1275521 (Forum Sept. 7, 2009) (finding <googlewebmarketing.com> confusingly similar to GOOGLE). The Panel finds that the disputed domain name is identical 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 Prods.,
Inc. v. Entm't Commentaries, FA 741828 (Forum
Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and is being used in connection with what appears to be a fraudulent phishing scheme. Such use does not give rise to rights or legitimate interests under the Policy, see, e.g., Rotiviti Inc. v. Matthew Moore, FA 1678649 (Forum July 13, 2016), and Respondent has failed to come forward with any other basis for rights or legitimate 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 has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." 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's registration of a domain name obviously intended to create confusion with Complainant, together with its use of that domain name in connection with what appears to be a fraudulent phishing scheme, is indicative of bad faith under the Policy. See, e.g., Rotiviti Inc. v. Matthew Moore, supra. The Panel finds that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <googlenetmarketing.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: October 15, 2016
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