Claim Number: FA2009001911247
Complainant is Taboola.com Ltd. (“Complainant”), represented by Ezra Katzen of Taboola.com Ltd., Israel. Respondent is Francis (“Respondent”), Brazil.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <wwwtaboola.com> ("the Domain Name"), registered with Google LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 3, 2020; the Forum received payment on September 3, 2020. The Complainant was received in English.
On September 4, 2020, Google LLC confirmed by e-mail to the Forum that the <wwwtaboola.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 September 11, 2020, the Forum served the English language Complaint and all Annexes, including an English and Portuguese language Written Notice of the Complaint, setting a deadline of October 1, 2020 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@wwwtaboola.com. Also on September 11, 2020, the English and Portuguese 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 October 6, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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.
Preliminary Issue: Language of Proceeding
Pursuant to UDRP Rule 11(a), the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language. After considering the circumstance of the present case, the Panel decides that the proceeding should be in English.
PARTIES' CONTENTIONS
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the mark TABOOLA, registered in the USA for Internet related services, with first use recorded as 2008.
The Domain Name, registered in 2020, is confusingly similar to the Complainant’s mark, adding only the letters "www," meaning world wide web, and a gTLD ".com," which do not prevent said confusing similarity.
The Respondent does not have rights or interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name has not been used so there has been no bona fide offering of goods or services or legitimate noncommercial or fair use. The Domain Name has been registered in opportunistic bad faith to disrupt the Complainant’s business.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark TABOOLA registered in the USA for Internet related services with first use recorded as 2008.
The Domain Name registered in 2020 is not currently being used.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name consists of the Complainant's TABOOLA mark (which is registered, inter alia, in USA for Internet services with first use recorded as 2008), the designation "www" and the gTLD ".com".
The Panel agrees that the typosquatting addition "www", meaning word wide web, does not distinguish the Domain Name from the Complainant's TABOOLA trade mark pursuant to the Policy. See Citizens Financial Group Inc. v Paul Taylor, FA 1714579 (Forum Mar 14, 2017) (adding www to the beginning of a mark in a domain name does not distinguish the domain name for the purposes of a Policy 4 (a)(i) analysis).
The gTLD ".com" does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purpose of the Policy to a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
There has been no use of the Domain Name. See Hewlett-Packard Co. v Shemesh, FA 434145 (Forum April 20, 2005) (Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy 4(c)(i).)
The Domain Name also appears to be a typosquatting registration. Typosquatting can provide additional evidence that a respondent has no rights or legitimate interests in a disputed domain name. See Macy’s Inc. and its subsidiary Macy’s West Stores, Inc. v. chen wenjie c/o Dynadot Privacy, FA1404001552918 (Forum May 21, 2014) (“Respondent’s disputed domain names are typosquatted versions of Complainant’s registered mark. Typosquatting shows a lack of rights or legitimate interests.”).
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s distinctive mark.
The Domain Name seeks to take advantage of the situation where Internet users may make a typographical error. Typosquatting itself is evidence of relevant bad faith registration and use and disruption of the Complainant’s business. See Diners Club int'l Ltd. v Domain Admin ****** It's all in the name ******, FA 156839 (Forum June 23, 2003) (registering a domain name in the hope that Internet users will mistype the Complainant’s mark and be taken to the Respondent’s site is registration and use in bad faith). Typosquatting also indicates the Respondent had knowledge of the Complainant and its rights. See InfoSpace, Inc. v. Greiner, FA 227653 (Forum Mar. 8, 2004) (“Respondent’s domain name is a simple and popular variation of a trademark commonly used by typosquatters …Such a domain name evidences actual knowledge of the underlying mark prior to the registration of the domain name, and as Respondent failed to submit any evidence to counter this inferrence [sic], Respondent’s actions evidence bad faith registration of the disputed domain name.”).
Passive holding of a domain name containing a mark with a reputation is commonly held to be bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under Policy 4 (b)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <wwwtaboola.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: October 6, 2020
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