Google LLC v. Kozlikov Andrey / Private Person
Claim Number: FA2201001981142
Complainant is Google LLC ("Complainant"), represented by Griffin Barnett of Perkins Coie LLP, District of Columbia, USA. Respondent is Kozlikov Andrey / Private Person ("Respondent"), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <qooqle.shop>, registered with Tucows Domains 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 January 19, 2022; the Forum received payment on January 19, 2022.
On January 20, 2022, Tucows Domains Inc. confirmed by email to the Forum that the <qooqle.shop> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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 January 20, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 9, 2022 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@qooqle.shop. Also on January 20, 2022, 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 February 15, 2022, 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 operates the widely used Google search engine and offers other products and services. Complainant has used the GOOGLE mark in connection with its products and services for many years, including Google Play, a mobile applications marketplace. Complainant owns registrations for the GOOGLE mark in the United States and many other jurisdictions worldwide dating back to as early as 1999. Complainant asserts that the GOOGLE mark has become famous internationally as a result of extensive use, advertising and promotion, media coverage, and consumer recognition.
The disputed domain name <qooqle.shop> was registered via a privacy registration service in February 2020. The domain name is being used for a website entitled "Gooqle Play Market" that closely mimics the appearance of the website for Complainant's Google Play service. The website offers for sale mobile apps that compete directly with those offered by Complainant. Complainant states that Respondent is not known by the disputed domain name and is not licensed or otherwise authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <qooqle.shop> is confusingly similar to its GOOGLE mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed 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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <qooqle.shop> incorporates Complainant's registered GOOGLE trademark, substituting a letter "Q" for each "G" and appending the ".shop" top-level domain. These alterations do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Google LLC v. Privacy Protection, FA 1970877 (Forum Nov. 30, 2021) (finding <gooqleplay.com> confusingly similar to GOOGLE PLAY); Google LLC v. John Harris / YT, FA 1906135 (Forum Aug. 26, 2020) (finding <gooqle.email> confusingly similar to GOOGLE). The Panel considers the disputed domain name to be confusingly similar 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 Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and it is being used for a misleading website that passes off as Complainant and promotes products or services that compete directly with those offered by Complainant. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Opportunity Financial, LLC v. Eric Schirmer, FA 1928585 (Forum Feb. 22, 2021) (finding lack of rights or interests in similar circumstances); Google LLC v. Hyipp Inversiones Webmaster / Hyipp Inversiones Webmaster, S.A., FA 1791842 (Forum July 13, 2018) (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or 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 is being 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 used a privacy registration service to register a domain name corresponding to a typographical variation on Complainant's famous mark, in an obvious instance of typosquatting, and is using the domain name for a website that passes off as Complainant and promotes directly competing products or services. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Google LLC v. Majiaai, FA 1929459 (Forum Feb. 22, 2021) (finding bad faith based upon typosquatting, use of privacy registration service, and pay-per-click links related to complainant); Google LLC v. Privacy Protection, supra (finding bad faith based upon typosquatting and use of privacy registration service); Google LLC v. John Harris / YT, supra (finding bad faith based upon typosquatting); Google LLC v. Hyipp Inversiones Webmaster / Hyipp Inversiones Webmaster, S.A., supra (finding bad faith where domain name was used to pass off as complainant and promote competing services). The Panel finds that the disputed domain name was registered and is being 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 <qooqle.shop> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 15, 2022
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