Google Inc. v. Konstantin A Igumnov
Complainant is Google Inc. (“Complainant”), represented by Meredith
M. Pavia, California, USA. Respondent is Konstantin A. Igumnov (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN
The domain name at issue is <googlechromeos.com>, registered with
Centrohost Closed Joint Stock Company.
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.
James A. Carmody,
Esq., as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on December 3, 2009;
the National Arbitration Forum received a hard copy of the Complaint on December 4, 2009.
On December 4, 2009,
Centrohost Closed Joint Stock Company
confirmed by e-mail to the National Arbitration Forum that the <googlechromeos.com>
domain name is registered with Centrohost Closed
Joint Stock Company and that Respondent is the current registrant of the
Closed Joint Stock Company has verified that Respondent is bound by the Centrohost Closed Joint Stock Company 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 December 4, 2009,
a Notification of Complaint and Commencement of Administrative Proceeding (the
"Commencement Notification"), setting a deadline of December 24, 2009
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 firstname.lastname@example.org by
Having received no response from
Respondent, the National Arbitration Forum transmitted to the parties a
Notification of Respondent Default.
On January 4, 2010, pursuant to
Complainant's request to have the dispute decided by a single-member Panel, the
National Arbitration Forum appointed James A. Carmody, Esq., as Panelist.
Having reviewed the communications
records, the Administrative Panel (the "Panel") finds that the
National Arbitration 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."
Therefore, the Panel may issue its decision based on the documents
submitted and in accordance with the ICANN Policy, ICANN Rules, the National
Arbitration Forum's Supplemental Rules and any rules and principles of law that
the Panel deems applicable, without the benefit of any response from
Complainant requests that the domain
name be transferred from Respondent to Complainant.
Complainant makes the following assertions:
name is confusingly similar to Complainant’s GOOGLE mark.
does not have any rights or legitimate interests in the <googlechromeos.com> domain name.
registered and used the <googlechromeos.com>
domain name in bad faith.
Respondent failed to submit a Response in this proceeding.
Complainant, Google Inc.,
operates a well-known Internet search service as well as a wide range of other
products and services. In particular,
Complainant has offered a web browser called “Google Chrome” since September 2, 2009. Additionally, Complainant has announced its
intention to release an operating system named “Google Chrome OS.” Complainant holds many registrations of the GOOGLE
mark around the world, including several with the United States Patent and
Trademark Office (“USPTO”) (e.g., Reg. No. 2,806,075 issued January 20, 2004).
Respondent, Konstantin A
Igumnov, registered the <googlechromeos.com> domain name on
February 7, 2009. Respondent has not put the disputed domain
name to any active use and it currently resolves to an inactive website. Respondent offered to sell the disputed
domain name to Complainant for 1,000,000 rubles (approximately USD $33,000).
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."
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(e), 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 and inferences set forth in the Complaint
as true unless the evidence is clearly contradictory. See Vertical
Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb.
Forum July 31,
2000) (holding that the respondent’s failure to respond allows all
reasonable inferences of fact in the allegations of the complaint to be deemed
true); see also Talk City, Inc. v.
Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response,
it is appropriate to accept as true all allegations of the Complaint.”).
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:
domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
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
Identical and/or Confusingly Similar
The Panel finds that Complainant has established rights in
its GOOGLE mark pursuant to Policy ¶ 4(a)(i) via its multiple registrations of
the mark throughout the world (e.g.,
USPTO Reg. No. 2,806,075 issued January 20, 2004). See Google, Inc. v. DktBot.org,
FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had
established rights in the GOOGLE mark through its holding of numerous trademark
registrations around the world); see also
Reebok Int’l Ltd. v. Santos, FA 565685 (Nat.
Arb. Forum Dec.
21, 2005) (finding trademark registration with the USPTO was
adequate to establish rights pursuant to Policy ¶ 4(a)(i)). Further, registration in Respondent’s country
of business is not necessary to establish Complainant’s rights in the mark
under Policy ¶ 4(a)(i). See
Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001)
(finding that the Policy does not require that the mark be registered in the
country in which the respondent operates; therefore it is sufficient that the
complainant can demonstrate a mark in some jurisdiction); see also KCTS Television Inc.
v. Get-on-the-Web Ltd., D2001-0154 (WIPO Apr. 20, 2001) (holding that
it does not matter for the purpose of paragraph 4(a)(i) of the Policy whether
the complainant’s mark is registered in a country other than that of the
respondent’s place of business).
domain name includes Complainant’s GOOGLE mark, the phrase “chrome os,” and the
generic top-level domain (“gTLD”) “.com.”
The Panel finds that the addition of a gTLD is irrelevant to an analysis
under Policy ¶ 4(a)(i). See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Nat. Arb.
Forum Sept. 27,
2002) (“[I]t is a well established principle that generic top-level
domains are irrelevant when conducting a Policy ¶ 4(a)(i)
analysis.”). Further, the Panel finds
that the words “chrome os” have an obvious relationship to Complainant’s
business because they describe Complainant’s future operating system.
The Panel therefore finds that the <googlechromeos.com> domain name is
confusingly similar to Complainant’s GOOGLE mark under Policy ¶ 4(a)(i). See Space Imaging LLC v.
Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding
confusing similarity where the respondent’s domain name combines the
complainant’s mark with a generic term that has an obvious relationship to the
complainant’s business); see
also Kohler Co. v. Curley, FA 890812 (Nat. Arb. Forum Mar. 5, 2007) (finding
confusing similarity where <kohlerbaths.com>, the disputed domain name, contained the
complainant’s mark in its entirety adding “the descriptive term ‘baths,’ which
is an obvious allusion to complainant’s business.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Rights or Legitimate Interests
The initial burden under Policy ¶ 4(a)(ii)
is on Complainant to prove that Respondent does not have any rights or
legitimate interests in the disputed domain name. Once Complainant has made a
prima facie case, the burden shifts
to Respondent to show that it does have rights or legitimate interests pursuant
to the directions provided in Policy ¶ 4(c). See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the
Respondent has no rights or legitimate interests in respect of the Domain Name
requires the Complainant to prove a negative. For the purposes of this sub
paragraph, however, it is sufficient for the Complainant to show a prima facie
case and the burden of proof is then shifted on to the shoulders of
Respondent. In those circumstances, the
common approach is for respondents to seek to bring themselves within one of
the examples of paragraph 4(c) or put forward some other reason why they can
fairly be said to have a relevant right or legitimate interests in respect of
the domain name in question.”); see also Do The Hustle, LLC v. Tropic Web,
D2000-0624 (WIPO Aug.
21, 2000) (holding that once the complainant asserts that the
respondent has no rights or legitimate interests with respect to the domain,
the burden shifts to the respondent to provide “concrete evidence that it has
rights to or legitimate interests in the domain name at issue”). The Panel finds that Complainant has presented
a prima facie case, and in light of
Respondent’s failure to submit a response the Panel now chooses to consider
whether an evaluation of all the evidence demonstrates rights or legitimate
interests for Respondent under Policy ¶ 4(c).
The Panel finds no evidence in the record suggesting that
Respondent is commonly known by the <googlechromeos.com>
domain name. Complainant asserts that
Respondent has no license or agreement with Complainant authorizing Respondent
to use the GOOGLE mark, and the WHOIS information identifies Respondent as “Konstantin A Igumnov.” Thus, Respondent has not established rights
or legitimate interests in the disputed domain name under 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 Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent
has registered the domain name under the name ‘Ilyoup Paik a/k/a David
Sanders.’ Given the WHOIS domain name
registration information, Respondent is not commonly known by the
[<awvacations.com>] domain name.”).
Respondent has not posted anything on the website that
resolves from the <googlechromeos.com>
domain name. The Panel finds that
Respondent’s failure to use the disputed domain name does not constitute a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use under Policy ¶ 4(c)(iii). See
Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no
rights or legitimate interests where the respondent failed to submit a response
to the complaint and had made no use of the domain name in question); see also Boeing Co. v. Bressi,
D2000-1164 (WIPO Oct.
23, 2000) (finding no rights or legitimate interests where the
respondent has advanced no basis on which the panel could conclude that it has
a right or legitimate interest in the domain names, and no commercial use of
the domain names has been established).
Panel finds Respondent’s offer to sell the <googlechromeos.com> domain name to Complaintant is further evidence that Respondent
lacks rights and legitimate interests in the disputed domain name pursuant to
Policy ¶ 4(a)(ii). See Mothers
Against Drunk Driving v. Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003)
(holding that under the circumstances, the respondent’s apparent willingness to
dispose of its rights in the disputed domain name suggested that it
lacked rights or legitimate interests in the domain name); see also Wal-Mart Stores, Inc. v. Stork, D2000-0628 (WIPO Aug. 11, 2000)
(finding the respondent’s conduct purporting to sell the domain name suggests
it has no legitimate use).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
offered to sell the disputed domain name to Complainant for 1,000,000 rubles,
approximately $33,000 United
States dollars. The Panel finds that this offer to sell the
disputed domain name to Complainant for more than the out-of-pocket costs
related to the registration of the disputed domain name constitutes bad faith
under Policy ¶ 4(b)(i). See Neiman Marcus Group,
Inc. v. AchievementTec, Inc., FA
192316 (Nat. Arb. Forum Oct. 15, 2003)
(finding the respondent’s offer to sell the domain name for $2,000 sufficient
evidence of bad faith registration and use under Policy ¶ 4(b)(i));
see also Am. Online, Inc.
v. Prijic, FA 112639 (Nat. Arb. Forum June 27, 2002) (“[I]n determining
whether Respondent has sought consideration in excess of its out-of-pocket
costs, the Policy makes clear that only costs related to the domain name are to
be considered, and not those related to the creation or maintenance of the
The Panel finds Respondent’s failure to post anything on the
website that resolves from the <googlechromeos.com>
domain name is evidence of bad faith registration and use pursuant to Policy ¶
4(a)(iii). See Caravan Club v. Mrgsale, FA 95314
(Nat. Arb. Forum Aug.
30, 2000) (finding that the respondent made no use of the domain
name or website that connects with the domain name, and that failure to use a
domain name permits an inference of registration and use in bad faith); see also Cruzeiro Licenciamentos Ltda. v.
Sallen, D2000-0715 (WIPO Sept. 6, 2000) (“Mere [failure to use] a domain name can
qualify as bad faith if the domain name owner’s conduct creates the impression
that the name is for sale.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the
ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <googlechromeos.com> domain name be TRANSFERRED
from Respondent to Complainant.
A. Carmody, Esq., Panelist
Dated: January 15, 2010
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