Google LLC v. Markus Tamm
Claim Number: FA2205001998470
Complainant is Google LLC ("Complainant"), represented by James R. Davis, II of Perkins Coie LLP, District of Columbia, USA. Respondent is Markus Tamm ("Respondent"), Latvia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <googlre.com>, registered with NameSilo, LLC.
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 May 31, 2022; the Forum received payment on May 31, 2022.
On May 31, 2022, NameSilo, LLC confirmed by email to the Forum that the <googlre.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 June 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 21, 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@googlre.com. Also on June 1, 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 June 27, 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. Complainant owns registrations for the GOOGLE mark in the United States and many other jurisdictions worldwide dating back to as early as 1999, with first use dates as early as September 1997. Complainant asserts that the GOOGLE mark has become famous internationally as a result of extensive use, advertising and promotion, media coverage, and consumer recognition, and notes that its website was among the most popular websites as early as 2004.
The disputed domain name <googlre.com> was registered in November 2000 and is currently registered in the name of a privacy registration service on behalf of Respondent. Complainant states that Respondent registered the domain name "several years after the Google service was launched and had become popular." Complainant asserts that Respondent is a "recidivist cybersquatter" who has lost at least three prior decisions under the Policy involving other famous trademarks, and characterizes the domain name in this proceeding as "a textbook case of bad faith typosquatting." The domain name is being used to direct users to a rotating series of third-party commercial websites, including a fake version of Complainant's search engine. Complainant states that Respondent is not commonly known by the domain name and is not authorized to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain name <googlre.com> 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 <googlre.com> corresponds to Complainant's registered GOOGLE trademark, inserting a letter "R" and appending the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Google Inc. v. Domain Administrator, FA 1422926 (Forum Feb. 10, 2012) (finding <googlae.com> and <googlse.com> confusingly similar to GOOGLE); Google Inc. v. Jon G., FA 106084 (Forum Apr. 26, 2002) (finding <googel.com> confusingly similar to GOOGLE); Google, Inc. v. Goog LR f/k/a Seocho, FA 98462 (Forum Sept. 28, 2001) (finding <googlr.com> 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 has been used to display various third-party commercial websites, including a fake version of Complainant's site. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., MoneyGram International, Inc. v. Domain Admin / Whois Privacy Corp., FA 1698585 (Forum Nov. 28, 2016) (finding lack of rights or interests where domain name redirected to rotating series of websites).
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, and is using the domain name to display various third-party websites, including a fake version of Complainant's site. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., MoneyGram International, Inc. v. Domain Admin / Whois Privacy Corp., supra (finding bad faith registration and use in similar circumstances); WordPress Foundation v. Above.com Domain Privacy, FA 1641647 (Forum Nov. 9, 2015) (same). The Panel notes also that Respondent has been found to have engaged in typosquatting targeting other well-known marks in other proceedings under the Policy. See Hilton International Holding LLC & Hilton Worldwide Mange Ltd. v. Markus Tamm, FA 1809730 (Forum Nov. 5, 2018) (ordering transfer of <hitlon.com>); Intuit Inc. v. Domain Administrator, See PrivacyGuardian.org / Markus Tamm, D2018-2000 (WIPO Oct. 24, 2018) (ordering transfer of <terbotax.com>). 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 <googlre.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 5, 2022
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