Duck Duck Go, Inc. v. Polyakov Andrey
Claim Number: FA2111001972748
Complainant is Duck Duck Go, Inc. ("Complainant"), represented by Deborah A. Wilcox of Baker & Hostetler LLP, Ohio, USA. Respondent is Polyakov Andrey ("Respondent"), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <duckduckgobrowser.net>, <duckduckgobrowserapp.com>, and <getduckduckgo.com>, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 10, 2021; the Forum received payment on November 10, 2021.
On November 10, 2021, NameCheap, Inc. confirmed by email to the Forum that the <duckduckgobrowser.net>, <duckduckgobrowserapp.com>, and <getduckduckgo.com> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 November 12, 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 email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@duckduckgobrowser.net, postmaster@duckduckgobrowserapp.com, postmaster@getduckduckgo.com. Also on November 12, 2021, 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 December 8, 2021, 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant is a global Internet search engine provider with a focus on protecting user privacy. Complainant states that it provides search results for one billion searches each month and is the fourth largest search engine in the United States by market share. Complainant uses the DUCKDUCKGO mark in connection with its services. Complainant owns various trademark registrations for the mark, including two United States registrations for the mark in standard character form, one of which issued in 2008, and also asserts common law rights in the mark.
Respondent registered the disputed domain names <duckduckgobrowser.net>, <duckduckgobrowserapp.com>, and <getduckduckgo.com> via a privacy registration service in April and September 2021. The domain names are being used for websites that are similar in appearance to Complainant's website and that display Complainant's DUCKDUCKGO mark and logo (a caricature of a duck wearing a bowtie), along with other images from Complainant's website. The websites state that Respondent receives revenue by displaying keyword and contextual advertisements and via affiliate relationships with retailers. Complainant alleges that the websites are designed to confuse users into believing that they are authorized by or affiliated with Complainant. Complainant alleges further that Respondent is a known cybersquatter. Complainant states that Respondent is not commonly known by the disputed domain names and has not been authorized or licensed to use Respondent's mark.
Complainant contends on the above grounds that each of the disputed domain names <duckduckgobrowser.net>, <duckduckgobrowserapp.com>, and <getduckduckgo.com> is confusingly similar to its DUCKDUCKGO mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are 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").
Each of the disputed domain names <duckduckgobrowser.net>, <duckduckgobrowserapp.com>, and <getduckduckgo.com> incorporates Complainant's registered DUCKDUCKGO trademark, adding one or more generic terms ("browser," "app," or "get") and the ".com" or ".net" top-level domain. These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Duck Duck Go, Inc. v. Mike Jones, FA 1894215 (Forum May 28, 2020) (finding <searchduckduckgo.com> confusingly similar to DUCKDUCKGO); Google Inc. v. Trademark Worx LLC a/k/a Richard Yaming, FA 1370035 (Forum Mar. 16, 2010) (finding <googlebrowser.com> confusingly similar to GOOGLE); Charter Communications Holding Co., LLC v. Polyakov Andrey, FA 1957591 (Forum Sept. 7, 2021) (finding <spectrumtvapp.net> confusingly similar to SPECTRUM TV); Eyeo GmbH v. Guttula Venkatesh, Siddharth Technologies, D2018-1054 (WIPO June 28, 2018) (finding <getadblockplus.com> confusingly similar to ADBLOCK PLUS). The Panel considers each of the disputed domain names 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 names, 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 names incorporate Complainant's registered mark without authorization, and they are being used for websites that attempt to pass off as Complainant to promote related or competing services for apparent commercial gain. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Charter Communications Holding Co., LLC v. Polyakov Andrey, supra (finding lack of rights or interests in similar circumstances); Duck Duck Go, Inc. v. Mike Jones, supra (same); Eyeo GmbH v. Guttula Venkatesh, Siddharth Technologies, supra (same).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, 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 names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered a 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 three domain names incorporating Complainant's registered mark without authorization, and is using the domain names for websites that attempt to pass off as Complainant to promote related or competing services for apparent commercial gain. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Charter Communications Holding Co., LLC v. Polyakov Andrey, supra (finding bad faith in similar circumstances); Duck Duck Go, Inc. v. Mike Jones, supra (same); Eyeo GmbH v. Guttula Venkatesh, Siddharth Technologies, supra (same). The Panel notes also that Respondent has previously been found to have registered and used other domain names in bad faith. See Charter Communications Holding Co., LLC v. Polyakov Andrey, supra (ordering transfer of <spectrumtvapp.net>); United Parcel Service of America, Inc. v. Polyakov Andrey, FA 1954233 (Forum Aug. 6, 2021) (ordering transfer of <upstrackingservice.net>). The Panel finds that the disputed domain names were registered and are 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 <duckduckgobrowser.net>, <duckduckgobrowserapp.com>, and <getduckduckgo.com> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: December 9, 2021
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