Google LLC v. alexandra kepelek
Claim Number: FA2111001972818
Complainant is Google LLC (“Complainant”), represented by Griffin Barnett of Perkins Coie LLP, District of Columbia, USA. Respondent is alexandra kepelek (“Respondent”), Germany.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gsuitecloud.cc>, registered with NameCheap, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 10, 2021; the Forum received payment on November 10, 2021.
On November 11, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <gsuitecloud.cc> 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 accord with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On November 11, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 2, 2021 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@gsuitecloud.cc. Also on November 11, 2021, 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 December 7, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 contends as follows:
Complainant has become one of the most highly recognized internet services in the world.
Complainant has rights in the G SUITE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <gsuitecloud.cc> domain name is nearly identical and confusingly similar to Complainant’s mark because it incorporates the G SUITE mark in its entirety and adds the term “cloud” and adds the “.cc” generic top-level domain (“gTLD”)
Respondent has no legitimate interests in the <gsuitecloud.cc> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not authorized or licensed Respondent any rights in the G SUITE mark. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the disputed domain name appears to be used in a phishing scheme and is held passively.
Respondent registered and uses the <gsuitecloud.cc> domain name in bad faith. Respondent registered the at-issue domain name in order benefit from phishing attacks. Additionally, Respondent holds the domain name passively. Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the G SUITE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in G SUITE.
Respondent is not affiliated with Complainant and is not authorized to use the G SUITE mark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired trademark rights in G SUITE.
Respondent’s at-issue domain name appears to further a phishing scheme and Respondent otherwise holds the domain name passively.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the G SUITE mark with the USPTO, as wells as its other registrations worldwide, demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <gsuitecloud.cc> domain name incorporates Complainant’s G SUITE trademark less its domain name impermissible space, followed by the descriptive term “cloud” and the generic top-level domain name “.cc.” Under the Policy the resulting differences between Complainant’s trademark and Respondent’s domain name do nothing to distinguish the at-issue domain name from Complainant’s trademark. Therefore, the Panel concludes that Respondent’s <gsuitevideos.com> domain name is confusingly similar to Complainant’s G SUITE trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name.
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “alexandra kepelek,” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <gsuitecloud.cc> domain name. The Panel therefore concludes that Respondent is not commonly known by the <gsuitecloud.cc> domain name for the purposes of Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (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 domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Moreover, Respondent appears to use the <gsuitecloud.cc> domain name to further a phishing scheme. Notably, on browsing to <gsuitecloud.cc> Respondent’s domain name is flagged as a “Deciptive site…” and then a message that the “site can’t be reached”. Respondent’s use of the domain name in this manner indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either 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).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First, Respondent’s holds the <gsuitecloud.cc> domain name passively. Doing so is evidence of bad faith registration and use. Respondent’s inactive holding of the at-issue domain name demonstrates bad faith registration and use per Policy ¶ 4(a)(iii). See State Farm Mutual Automobile Insurance Company v. Dr. Keenan Cofield, FA 1799574 (Forum Sept. 10, 2018) (finding bad faith under Policy ¶ 4(a)(iii) where “the domain name initially resolved to a web page with a “website coming soon” message, and now resolves to an error page with no content.”).
Next as mentioned above regarding rights and interests, Respondent’s at-issue domain name appears to be use to facilitate a phishing scheme. Respondent’s use of the confusingly similar <gsuitecloud.cc> domain name in this manner shows bad faith registration and use under the Policy. See Juno Online Servs., Inc. v. Nelson, FA 241972 (Forum Mar. 29, 2004) (“‘Phishing’ involves the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit cards, passwords, social security numbers and other personal information to the ‘phishers’ who intend to use such information for fraudulent purposes.”); see also, Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”).
Finally, Respondent had actual knowledge of Complainant’s rights in the G SUITE mark when it registered <gsuitecloud.cc> as a domain name. Respondent’s actual knowledge is evident from the worldwide notoriety of Complainant’s G SUITE trademark and from the juxtaposed suggestive term “cloud” incorporated in Respondent’s domain name. Respondent’s registration and use of a confusingly similar domain name with knowledge of Complainant’s rights in such domain name shows Respondent’s bad faith pursuant to Policy ¶4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering 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 <gsuitecloud.cc> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: December 8, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page