Google Inc. v. Michael Behzad
Claim Number: FA0912001297837
Complainant is Google Inc. (“Complainant”), represented by Meredith
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <googletrader.com>, registered with Godaddy.com, 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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 7, 2009; the National Arbitration Forum received a hard copy of the Complaint on December 8, 2009.
On December 8, 2009, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <googletrader.com> domain name is registered with Godaddy.com, Inc. and that 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 December 11, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of December 31, 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 e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 8, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Louis E. Condon 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 Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <googletrader.com> domain name is confusingly similar to Complainant’s GOOGLE mark.
2. Respondent does not have any rights or legitimate interests in the <googletrader.com> domain name.
3. Respondent registered and used the <googletrader.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Google Inc., operates a search engine service and other related online services under its GOOGLE mark. Complainant has registered its GOOGLE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,806,075 issued January 20, 2004).
Respondent, Michael Behzad, registered the <googletrader.com> domain name on October 3, 2008. The disputed domain name resolves to a parked website that contains advertisements and links to third-party websites.
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:
(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.
Complainant has provided evidence of the registration of its
GOOGLE mark with the USPTO (e.g., Reg. No. 2,806,075 issued January 20, 2004). The Panel finds this registration is
sufficient to establish Complainant’s rights in its GOOGLE mark under Policy ¶
4(a)(i). See Reebok
Int’l Ltd. v.
Complainant contends the <googletrader.com> domain name is confusingly similar to its GOOGLE mark. The disputed domain name contains Complainant’s GOOGLE mark in its entirety, adds the generic term “trader,” and adds the generic top-level domain “.com.” The Panel finds none of these additions distinguish the disputed domain name from Complainant’s mark. Thus, the Panel finds the disputed domain name is confusingly similar to Complainant’s GOOGLE mark under Policy ¶ 4(a)(i). See Arthur Guinness Son & Co. (Dublin) Ltd. v. Healy/BOSTH, D2001-0026 (WIPO Mar. 23, 2001) (finding confusing similarity where the domain name in dispute contains the identical mark of the complainant combined with a generic word or term); see also Am. Express Co. v. MustNeed.com, FA 257901 (Nat. Arb. Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis).
The Panel finds Policy ¶ 4(a)(i) has been satisfied.
Initially under Policy ¶ 4(a)(ii)
Complainant must prove 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
Complainant contends Respondent is not commonly known by the
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 “Michael Behzad.” Therefore, the Panel finds Respondent is not
commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
The disputed domain name resolves to a parked website displaying links to third-party commercial websites. The Panel finds Respondent’s use of the disputed domain name is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a bona fide offering of goods or services or a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees); see also Meyerson v. Speedy Web, FA 960409 (Nat. Arb. Forum May 25, 2007) (finding that where a respondent has failed to offer any goods or services on its website other than links to a variety of third-party websites, it was not using a domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
The Panel finds Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends Respondent is using the disputed domain
name to resolve to a parked website containing links to third-party
websites. The Panel presumes Respondent
receives click-through fees or other remuneration for this use of the disputed
domain name. The Panel finds Respondent
is attempting to profit by misleading Internet users as to Complainant’s
affiliation with the confusingly similar disputed domain name. The Panel thus finds Respondent has engaged
in bad faith registration and use under Policy ¶ 4(b)(iv). See
T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum
June 7, 2006) (holding that the registration and use of a domain name
confusingly similar to a complainant’s mark to direct Internet traffic to a
commercial “links page” in order to profit from click-through fees or other
revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also The Ass’n of Junior Leagues
Int’l Inc. v. This Domain Name My Be For
The Panel finds Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <googletrader.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: January 20, 2010
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