The Neiman Marcus Group, Inc. & NM
Claim Number: FA0807001215817
Complainant is The Neiman Marcus Group, Inc. & NM Nevada Trust (“Complainant”),
represented by Anne F. Bradley, of Christie, Parker & Hale, LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nemanmarcos.com>, registered with Godaddy.com, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. O’Connor as Panelist.
This decision is being rendered in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the National Arbitration Forum’s UDRP Supplemental Rules (the “Supplemental Rules”).
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 16, 2008; the National Arbitration Forum received a hard copy of the Complaint on July 17, 2008.
On July 17, 2008, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <nemanmarcos.com> domain name is registered with Godaddy.com, Inc. and that the Respondent is the current registrant of the name. Godaddy.com, Inc. has verified that Respondent is bound by the Godaddy.com, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 18, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of August 7, 2008 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
On August 7, 2008, Respondent submitted an electronic copy of the Response, but the Response was deemed deficient due to Supplemental Rule 5 because a hard copy was not received.
On August 13, 2008, Complainant submitted an Additional Submission that was received in a timely manner and in compliance with Supplemental Rule 7.
On August 18, 2008, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. O’Connor as Panelist.
Complainant requests that the domain name be transferred from Respondent to Complainant.
Neiman Marcus retail business was established in 1907 as a local specialty
a result of over a century of use, the Complainant has created one of the most
famous and distinctive marks in retailing.
The Trademarks have acquired a valuable goodwill and reputation, not
only in the
In 1999, Complainant expanded its retailing business by launching an e‑commerce website at neimanmarcus.com. This site combines the modern technology of online retailing with the enduring philosophy developed by Complainant over 90 years ago. As such, the Complainant’s customers have developed an expectation of extraordinary merchandise and superior service in an elegant environment whether it is in a store, in a catalog, or on the Internet.
The domain name at issue is confusingly similar to the Trademarks
The subject domain name misappropriates sufficient textual components from the Trademarks that ordinary Internet users familiar with Complainant’s goods are likely to think that, owing to the visual and phonetic similarities between the domain name and Complainant’s Trademarks, an affiliation exists between the domain name and the Trademarks. The domain name nemanmarcos.com is a common mistyping of the Trademarks, merely omitting the “i” in the word “Neiman” and substituting the letter “o” for the letter “u” in the word “Marcus.”
Respondent is clearly engaged in typosquatting. Typosquatting is the intentional registration of a domain name that is a misspelling of a distinctive or famous mark, causing an Internet user who makes a slight spelling or typing error to reach an unintended site. Typosquatting has also been found to satisfy the confusingly similar prong of the UDRP.
The domain name at issue is virtually identical to Complainant’s Trademarks. The fact that the domain name is not perfectly identical to the Complainant’s family of trademarks because of the omission of the “i” and substitution of the “o” for “u” is of no consequence because Respondent has misappropriated a sufficient textual component of the Trademarks to cause confusion. Further, because the pronunciation, the connotation and commercial impression are identical, confusion is highly likely.
Complainant argues that a finding that the subject domain is confusingly similar to Complainant’s trademarks, and/or trade name is supported by both applicable case law and prior administrative proceedings.
Respondent has no rights or legitimate interest in the domain name at issue
Respondent is not known individually, or as a business, or in any other manner by “Neman Marcos” or by nemanmarcos.com. Complainant has not licensed Respondent to use its NEIMAN MARCUS mark or trade name, nor does Respondent have any legal relationship with Complainant that would entitle her to use Complainant’s mark or trade name. Respondent has no legitimate reason for using a typo of the Trademarks as her domain name.
Respondent is not making a legitimate noncommercial or fair use of the Trademarks, nor may it be implied that the Respondent registered the domain name in good faith. At the time this Complaint was filed, Respondent’s only use of the domain name was to illegally misdirect web surfers to Respondent’s website that displays various commercial advertisements.
Typosquatting also is evidence that a respondent lacks rights or legitimate interests in the disputed domain name.
In view of Complainant’s well-known mark and trade name, this commercial use by Respondent violates Complainant’s rights under Section 43(a) of the Lanham Act. Respondent’s use of the domain name nemanmarcos.com is “on or in connection with any goods or services,” and Respondent “uses in commerce any word, term, [or] name . . . , or any combination thereof . . . , which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.”
Respondent has adopted and used the domain name at issue in bad faith.
In the instant case, Respondent is using the domain name at issue to attract Internet users to its website by creating a likelihood of confusion with the Trademarks. Respondent is doing so for direct commercial gain by receiving revenue for presenting visitors with Internet advertising. Complainant is further harmed when consumers seeking Complainant’s website find Respondent’s website instead.
The act of typosquatting itself has been viewed as an independent ground for a finding of bad faith. Respondent registered the domain name at issue, which is clearly associated with the Trademarks, and has accordingly prevented the owner of the trademark from reflecting the mark in the subject domain name. Respondent knew, or should have known, that potential consumers seeking information about the goods and services of Complainant might misspell or mistype Complainant’s domain name, and therefore has precluded the Complainant from using its mark to direct its customers to its on legitimate website. Accordingly, these circumstances also support a finding of bad faith.
The registration of a confusingly similar domain name that is obviously connected with a particular trademark owner by someone with no connection with the trademark owner suggests bad faith. Because the Trademarks are so obviously connected with Complainant, and because the domain name at issue so clearly references the Trademarks, registration by Respondent, who has no connection with Complainant suggests bad faith. Accordingly, a finding of bad faith is also supported on these grounds.
The domain name
The NEMANMARCOS project is a group of students and faculty members conducting research in radiation treatment. The name NEMANMARCOS came from an adaption stemming from the term NEMA which is an acronym for National Electronics Manufacturing Associations. Following with the term MARCOS which is an acronym for Magnetic Applications to Radiation Computed by Oscillating Systems.
Respondent’s NEMANMARCOS project started in 1998 with an ambition to find better means of human imaging. This came about after extensive research for determining a better, less invasive imaging system. The goal of this project is to find safer techniques to survey anatomical regions while minimizing radiation exposure. The MARCOS system will show prominent areas of interest to within the one millimeter mark. This surpasses most other imaging techniques most commonly practiced in today’s medical offices. It is hoped that this system will also develop to distinguish between malignant and benign cells. The project is still in the developmental stage and this website will constitute a central hub for both researchers and investors. The NEMANMARCOS machine will outperform the latest generation of body-imaging methods. Since its inception, the NEMANMARCOS project has raised over $30,000 in proceeds for its research.
The domain name is not confusingly similar
The subject domain name constitutes 2 letters that are different and have no characteristics to mislead customers for Neiman-Marcus.
Respondent has a legitimate interest in the domain name
Respondent refers to its discussion regarding the NEMANMARCOS project.
Respondent has registered the domain name in anticipation of going public
The domain name at issue was registered for future development of the site. The content on the sight (sic) will not show any similarities to the complainant’s retail store front site. Furthermore, the domain in question has never generated any revenue contributed by advertisers.
C. Additional Submissions
Complainant has established its rights in the Trademarks. Despite Respondent's contention that the difference of two letters removes all confusion, the domain name at issue is confusingly similar to the Trademarks. Respondent offers no legal support for its position and there is significant legal support for Complainant's claim of confusingly similarity in the Complaint. Finally, the response filed by Respondent contains only self-serving justification for the registration of the domain name that is internally inconsistent and no actual evidence that the alleged NEMAN MARCOS project even exists.
Respondent has provided no evidence that this purported project exists. Additionally, although respondent has indicated that the name for the project is derived from two acronyms NEMA and MARCOS, Respondent has provided no explanation for its choice to join these two alleged acronyms, nor has it explained why the letter N was added between the NEMA acronym and the MARCOS acronym to create the infringing name NEMANMARCOS.
several searches to find information related to this "project" but
has found none. In the 10 results returned on a Google search for
“NEMANMARCOS”, none reference Respondent, or any project related to or operated
unable to identify any factual support whatsoever for the position that MARCOS
is a common acronym for "Magnetic Applications to Radiation Computed by
Oscillating Systems." Searches on
both Google and the
If, as Respondent would have the Panel believe, the "NEMANMARCOS project started in 1998" it seems exceedingly unlikely that there would be no record anywhere on the indexed Internet or on the University of Florida website of this project. However, Complainant through diligent efforts has been unable to locate such evidence and Respondent has failed to provide any evidence beyond its own unsupported self-serving assertions.
The response filed by Respondent also fails to explain why respondent waited 10 years since the purported inception of the NEMANMARCOS project to register the domain name at issue. The registration of the domain name on February 24, 2008, seems to defy the claim that the project has been in existence for a decade.
Assuming, arguendo, that Respondent is actually a member of a project bearing the name NEMANMARCOS, Respondent has nonetheless failed to rebut the presumption that it was aware of the Trademarks when it registered the domain name at issue. Furthermore, the response filed by Respondent admits that the purported project seeks to solicit investments from third parties and is therefore a commercial enterprise. Accordingly, Respondent's use of an infringing domain name to attract Internet traffic to its own commercial website by creating a likelihood of confusion with the Trademarks establishes bad faith under Policy ¶ 4(b)(iv).
Finally, it is settled law that the registration of a confusingly similar domain name that is obviously connected with a particular trademark owner by someone with no connection with the trademark owner suggests bad faith. Because the Trademarks are so obviously connected with Complainant, and because the domain name at issue so clearly references the Complainant's mark, registration by Respondent, who has no connection with Complainant, suggests bad faith.
Respondent submitted an electronic Response prior to the August 7, 2008 Response deadline, however, the Forum deemed the Response deficient pursuant to Rule 5 because the Response was not received in hard copy prior to the submission deadline.
In its Response, Respondent stated,
“Exhibits are being rushed by mail.” No
exhibits are referred to in the electronic text of the Response. Complainant has not been prejudiced by the
failure of Respondent to submit a hard copy of the Response. But, neither Complainant nor the Panel has
been favored with even an electronic copy of the exhibits. The Panel thus decides to consider the
Response but to pay no attention to any exhibits provided by Respondent. See Telstra Corp. v. Chu, D2000-0423 (WIPO
June 21, 2000) (finding that any weight to be given to the lateness of the
response is solely in the discretion of the panelist); Strum v. Nordic Net
The certification required by ¶ 3(b)(xiv) of the Rules is the minimum to demonstrate the admissibility of the factual contentions made by a complainant, and the certification required by ¶ 5(b)(viii) of the Rules is the minimum to demonstrate the admissibility of the factual contentions made by a respondent. Without certification, a Panel may choose not to consider any factual statements, even in the case of pro se parties.
Complainant has provided the required ¶ 3(b)(xiv) certification, and additional documents and affidavits. The Panel finds that the factual contentions made by Complainant are admissible and will be given weight as appropriate.
Respondent has provided the required ¶ 5(b)(viii) certification. The Panel finds that the factual contentions made by Respondent are admissible and will be given weight as appropriate.
Paragraph 15(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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 the 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 the Respondent is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(2) the 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.
Complainant has provided the Panel with evidence it first registered the Trademarks in block letter form with the United States Patent and Trademark Office (“USPTO”) on May 16, 1972 (Reg. No. 934,177) and May 12, 1981 (Reg. No. 1,154,006). Both registrations claim a first use date of 1907. Complainant has also provided evidence of several other registrations of the Trademarks with the USPTO. The Panel finds these registrations sufficiently establish Complainant’s rights in the Trademarks pursuant to Policy ¶ 4(a)(i). See Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive."); see also U.S. Office of Pers. Mgmt. v. MS Tech. Inc., FA 198898 (Nat. Arb. Forum Dec. 9, 2003) (“[O]nce the USPTO has made a determination that a mark is registrable, by so issuing a registration, as indeed was the case here, an ICANN panel is not empowered to nor should it disturb that determination.”).
Complainant contends the domain name at issue is confusingly similar to the Trademarks. The domain name differs from the Trademarks in the following ways: the deletion of the letter “i,” the substitution of the letter “o” for the letter “u,” and the addition of the generic top-level domain name “.com.” The Panel finds these alterations do not sufficiently distinguish the disputed domain name from the Trademarks. See Victoria’s Secret v. Zuccarini, FA 95762 (Nat. Arb. Forum Nov. 18, 2000) (finding that, by misspelling words and adding letters to words, a respondent does not create a distinct mark but nevertheless renders the domain name confusingly similar to the complainant’s marks); see also Busy Body, Inc. v. Fitness Outlet Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic top-level domain (gTLD) name ‘.com’ is . . . without legal significance since use of a gTLD is required of domain name registrants . . . ").
The Panel finds that Complainant has met its burden of proof under ¶ 4(a)(i) of the Policy.
Rights or Legitimate Interests
Once Complainant makes a case in support of its allegations, the burden of production shifts to Respondent to put forward some evidence to show that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”).
¶ 4(c) of the Policy lists three circumstances in particular, without limitation, that demonstrate rights or legitimate interest of a domain name registrant to a domain name, for the purposes of ¶ 4(a)(ii) of the Policy:
(i) before any notice of the dispute, the Respondent’s use 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 and services; or
(ii) the Respondent, as an individual, business, or other organization, has been commonly known by the domain name, even if no trademark or service mark rights have been acquired; or
(iii) the Respondent is making a legitimate non‑commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant contends Respondent is not commonly known by the domain name at issue. The WHOIS information lists Respondent as “Alyson Cieply.” Complainant maintains it has not authorized Respondent to use the Trademarks in any form. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that without demonstrable evidence to support the assertion that a respondent is commonly known by a domain name, the assertion must be rejected).
The Panel accepts the contention by Complainant that Respondent’s disputed domain name resolves to a parked page that displays links to products and services. Some of these links (e.g., “Macys.WeddingChannel.com) compete with Complainant’s retail business. The Panel finds that Respondent’s use of the disputed domain name is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Nat. Arb. Forum June 23, 2003) (“Respondent’s appropriation of [Complainant’s] SAFLOK mark to market products that compete with Complainant’s goods does not constitute a bona fide offering of goods and services.”); see also Coryn Group, Inc. v. Media Insight, FA 198959 (Nat. Arb. Forum Dec. 5, 2003) (finding that the respondent was not using the domain names for a bona fide offering of goods or services nor a legitimate noncommercial or fair use because the respondent used the names to divert Internet users to a website that offered services that competed with those offered by the complainant under its marks).
Respondent contends it is planning to use the disputed domain name in connection with its NEMANMARCOS project, which it states is named after a variation of the combination of the two acronyms NEMA and MARCOS. In its Additional Submission, Complainant argues Respondent has provided no evidence regarding its purported NEMANMARCOS project, or its preparations to use the disputed domain name in conjunction with this alleged project. Complainant also states Respondent has not provided arguments regarding its choice to use the two acronyms in conjunction with one another, or the addition of the letter “n” between the two acronyms. Complainant also asserts that it is suspicious that Respondent waited ten years since the alleged inception of this project to register the disputed domain name. Complainant alleges Respondent’s lack of evidence and the suspicion surrounding Respondent’s assertions is evidence Respondent lacks rights and legitimate interests in the disputed domain name.
The Panel finds that the contentions of Respondent are patently absurd. Why would anyone wish to couple the acronym (NEMA) of a manufacturing trade association with the acronym (MARCOS) of a research project?
Respondent has provided no corroboration for its contentions. And, Complainant in its Additional Submission has rebutted, and effectively so, those contentions.
Since Respondent has failed to provide evidence that it has made demonstrable preparations to use the disputed domain name in a noninfringing manner, Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that when the respondent declares its intent to develop a website, “[Policy ¶] 4(c)(i) requires Respondent to show 1) ‘demonstrable’ evidence of such preparations to use the domain name, and 2) that such preparations were undertaken ‘before any notice to [Respondent] of the dispute’”); see also Household Int’l, Inc. v. Cyntom Enters., FA 95784 (Nat. Arb. Forum Nov. 7, 2000) (finding that the respondent’s “vague and unsupported assertion of ‘plans to sell household goods, supplies and appliances over the Internet’” was insufficient to be considered proof of a legitimate business plan).
Additionally, Complainant alleges Respondent has engaged in typosquatting by using a disputed domain name, which differs only typographically from the Trademarks. In view of the Panel’s findings above, the Panel need not and does not address this contention.
The Panel finds that Complainant has met its burden of proof under ¶ 4(a)(ii) of the Policy.
The circumstances of ¶ 4(b) of the Policy are illustrative but not exhaustive of the circumstances under which bad faith registration and use under ¶ 4(a)(iii) of the Policy can be established.
¶ 4(b) of the Policy reads:
[T] he following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website 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 your website or location or of a product or service on your website or location.
Proof of ¶ 4(a)(iii) generally requires more than assertions of bad faith. See Starwood Hotels & Resorts Worldwide, Inc. v. Samjo CellTech.Ltd, FA 406512 (Nat. Arb. Forum Mar. 9, 2005) (finding that the complainant failed to establish that respondent registered and used the disputed domain name in bad faith because mere assertions of bad faith are insufficient for a complainant to establish Policy ¶ 4(a)(iii)); see also Graman USA Inc. v. Shenzhen Graman Indus. Co., FA 133676 (Nat. Arb. Forum Jan. 16, 2003) (finding that general allegations of bad faith without supporting facts or specific examples do not supply a sufficient basis upon which the panel may conclude that the respondent acted in bad faith). Lack of rights or legitimate interest under Policy ¶ 4(a)(ii) does not automatically translate into a finding of bad faith under Policy ¶ 4(a)(iii).
Complainant provides evidence Respondent’s disputed domain name resolves to a website which displays links to third-party websites, some of which compete with Complainant. Complainant contends Respondent receives compensation in the form of click-through fees from its use of the domain name. Respondent denies that it has received any revenue contributed by advertisers from the domain name. But, the website using the domain name is clearly commercial, and someone is making revenue from the domain name. Respondent is responsible for any activities carried out using the domain name. See McNeil Nutritionals, LLC v. Prepress Consultants, Inc. et al, FA 1043195 (Nat. Arb. Forum Sep. 11, 2007) (“The Panel finds Respondent responsible for these links because it is Respondent that has authorized the registrars to use the domain names at issue.”)
The presence of the “n” in the disputed domain name clearly indicates to the Panel that the Respondent has registered and used the domain name in bad faith. There is no plausible explanation for that letter, other than to emulate the Trademarks. And, the website using the confusingly similar domain name includes links to Complainant’s competitors. See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
Additionally, Complainant asserts Respondent has engaged in typosquatting. As with the issue of legitimate rights and interest, the Panel need not and does not address this contention.
The Panel finds that Complainant has met its burden of proof under ¶ 4(a)(iii) of the Policy.
Complainant having established all three elements required under the Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <nemanmarcos.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. O’Connor, Panelist
Dated: September 2, 2008
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National Arbitration Forum
 Complainant contends that The Neiman Marcus Group, Inc. is the licensee of NM Nevada Trust, the owner of the Trademarks. Because Respondent does not dispute this contention, the Panel accepts the designation of both companies as “Complainant.”
 Complainant supports this contention by a table of marks and printouts from the United States Patent and Trademark Office.
 Complainant supports these contentions by citations of case authority. Some of the cited cases involved the Trademarks and domain name disputes similar to the present dispute.
 Complainant supports this contention by printouts from a website using the domain name at issue.
 Complainant supports this contention by citations of case authority.
 Complainant supports this contention by citations of statutory and case authority.
 Complainant supports this contention by citations of case authority.
 Complainant supports this contention by citations of case authority, with reference to Policy ¶ 4(b)(iv).
 Complainant supports this contention by citations of case authority.
 Complainant supplies a copy of the Google search results.
Complainant supplies a copy of the
Complainant supplies a copy of the Google and