Google LLC v. Xetcom Portal
Claim Number: FA2203001988800
Complainant is Google LLC (“Complainant”), represented by James R. Davis, II of Perkins Coie LLP, District of Columbia, USA. Respondent is Xetcom Portal (“Respondent”), New York, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <freechrome.site>, registered with NameCheap, Inc..
PANEL
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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 17, 2022. The Forum received payment on March 17, 2022.
On March 18, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <freechrome.site> 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 March 21, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 11, 2022 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@freechrome.site. Also on March 21, 2022, 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 April 18, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 one of the most highly recognized Internet search services in the world. Its CHROME browser is available free of charge. Complainant has rights in the CHROME mark through numerous registrations, including with the United States Patent and Trademark Office (“USPTO”). Respondent’s <freechrome.site> domain name is nearly identical and confusingly similar to Complainant’s CHROME mark, which is famous.
Respondent lacks rights and legitimate interests in the <freechrome.site> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its CHROME mark in the domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead makes prominent use of the GOOGLE and CHROME marks and the CHROME logo alongside a software download button where confused visitors can download potentially malicious software.
Respondent registered the <freechrome.site> domain name in bad faith to suggest falsely that consumers are visiting a website where they can download Complainant’s free CHROME software. Respondent uses the domain name to attract Internet users to the domain name’s resolving website, where it hosts potentially malicious software and passes itself off as Complainant. Social media links at the bottom of the site actually link to Complainant’s authentic social media accounts, thereby falsely suggesting that Complainant operates or is affiliated with Respondent’s website. Accordingly, Respondent registered and is using the domain name in bad faith and with actual knowledge of Complainant and its trademarks. Further, Respondent provided false WHOIS information when registering the domain name.
Respondent also owns and uses the domain name “DOWNLOAD-CHROME.US” with a similar website that apparently deceives consumers into downloading malicious software that is promoted as legitimate Google CHROME software. This pattern of cybersquatting further demonstrates Respondent’s bad faith intent to confuse and deceive consumers into downloading potentially malicious software.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
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”).
Complainant has shown that it has rights in the CHROME mark through numerous registrations around the world, including with the USPTO (e.g. Reg. No. 5,355,294, registered December 12, 2017). The Panel finds Respondent’s <freechrome.site> domain name to be confusingly similar to Complainant’s CHROME mark as it incorporates the mark in its entirety and adds the word “free”, which is insufficient to distinguish the domain name from the mark, and the inconsequential “.site” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <freechrome.site> domain name was registered on April 3, 2020, many years after Complainant has shown that its CHROME mark had become famous worldwide. It resolves to a website falsely purporting to be a website of Complainant where Internet users can download Complainant’s free CHROME software.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <freechrome.site> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
The four illustrative circumstances set out in paragraph 4(b) of the Policy as evidence of the registration and use of a domain name in bad faith for purposes of paragraph 4(a)(iii) are not exclusive.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s famous CHROME mark when Respondent registered the <freechrome.site> domain name and that Respondent did so intentionally to attempt to attract Internet users to Respondent’s website by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the services promoted on that website. The Panel finds that Respondent registered and is using the domain name in bad faith.
Complainant has established this element.
DECISION
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <freechrome.site> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: April 19, 2022
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