DECISION

 

Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd.

Claim Number: FA1602001660771

 

PARTIES

Complainant is Google Inc. (“Complainant”), represented by Chantal Z. Hwang of Cooley LLP, California, USA.  Respondent is Pritam Singh / Pandaje Technical Services Pvt Ltd. (“Respondent”), Delaware, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <gmailtechnicalsupportnumber.net>, registered with GoDaddy.com, LLC.

 

PANEL

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.

 

Bruce E. Meyerson as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on February 12, 2016; the Forum received payment on February 12, 2016.

 

On February 12, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <gmailtechnicalsupportnumber.net> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name.  GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 February 17, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 8, 2016 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@gmailtechnicalsupportnumber.net.  Also on February 17, 2016, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 March 11, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

1.    Complainant uses the GMAIL mark in connection with its email and electronic messaging service. Complainant has registered the GMAIL mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,150,462, registered October 3, 2006).  Respondent registered the <gmailtechnicalsupportnumber.net> domain name on July 17, 2015.

2.    Respondent’s domain name is confusingly similar to the GMAIL mark as it incorporates the mark entirely and adds the generic phrase “technical support number” and the generic top-level domain (“gTLD”) “.net.”

3.    Respondent has no rights or legitimate interests in the <gmailtechnicalsupportnumber.net> domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use through the gmailtechnicalsupportnumber.net> domain name. Rather, the domain name resolves to a website in which Respondent is attempting to phish for Internet users’ information by presenting itself online as an affiliate of Complainant or Complainant’s own technical support service, and presumably selling the information gathered for profit.

4.    Respondent registered and is using the <gmailtechnicalsupportnumber.net> domain name in bad faith.

5.    Respondent has attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website. Further, Respondent had actual or constructive notice of the GMAIL mark and Complainant’s rights therein.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds trademark rights for the GMAIL mark.  Respondent’s domain name is confusingly similar to Complainant’s GMAIL mark.  Complainant has established that Respondent lacks rights or legitimate interests in the use of the <gmailtechnicalsupportnumber.net> domain name, and that Respondent registered and uses the domain name in bad faith.

 

DISCUSSION

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 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.”).

 

Identical and/or Confusingly Similar

 

Complainant uses the GMAIL mark in connection with its email and electronic messaging service. Complainant has registered the GMAIL mark with the USPTO (e.g., Reg. No. 3,150,462, registered October 3, 2006), which demonstrates its rights in the mark. Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”). Therefore, the Panel finds that Complainant has demonstrated rights in the GMAIL mark under Policy ¶ 4(a)(i).

 

Complainant further argues that Respondent’s <gmailtechnicalsupportnumber.net> domain name is confusingly similar to the GMAIL mark as it incorporates the mark entirely and adds the generic terms “technical,” “support,” and “number” and the gTLD “.net.” The addition of generic words and gTLDs are insufficient to overcome a finding of confusing similarity under Policy ¶ 4(a)(i). See Dr. Ing. h.c. F. Porsche AG v. Anderson, D2004-0312 (WIPO July 2, 2004) (finding the <porschesales.com> domain name to be confusingly similar where the respondent added the generic term “sales” to the complainant’s PORSCHE mark); see also Little Six, Inc. v. Domain For Sale, FA 96967 (Nat. Arb. Forum Apr. 30, 2001) (finding that <mysticlake.net> is plainly identical to the complainant’s MYSTIC LAKE trademark and service mark). The Panel therefore agrees that Respondent’s <gmailtechnicalsupportnumber.net> domain name is confusingly similar to the GMAIL mark under Policy ¶ 4(a)(i).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

 

Complainant alleges that Respondent holds no rights or legitimate interests in the <gmailtechnicalsupportnumber.net> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c). See also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“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.”). The Panel holds that Complainant has made a prima facie case.

 

Complainant argues that Respondent has no rights or legitimate interests in the <gmailtechnicalsupportnumber.net> domain name. First, Complainant asserts that Respondent is not commonly known by the domain name. The WHOIS information regarding the domain name lists “Pritam Singh” as registrant. Complainant also asserts that it has not given Respondent permission to use its GMAIL mark. Therefore, based on the record, the Panel agrees that there is no basis to find Respondent to be commonly known by the <gmailtechnicalsupportnumber.net> domain name per Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).

 

Further, Complainant argues that Respondent is neither making a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the <gmailtechnicalsupportnumber.net> domain name. Rather, Complainant has shown that the domain name resolves to a website containing offers for technical support and password recovery services for Complainant’s email service. This use is in direct competition with Complainant’s own technical support services. Complainant asserts that through the use of Complainant’s mark and logo, Respondent is likely attracting and diverting Internet users and engaging in a “phishing” scheme by collecting personal information from Complainant’s customers. Such use, whether offering competing services to those of Complainant, or attempting to phish for Internet users’ personal information, does not constitute a bona fide offering of goods or services nor a legitimate noncommercial or fair use. See Ameritrade Holdings Corp. v. Polanski, FA 102715 (Nat. Arb. Forum Jan. 11, 2002) (finding that the respondent’s use of the disputed domain name to redirect Internet users to a financial services website, which competed with the complainant, was not a bona fide offering of goods or services); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (FORUM Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).  Accordingly, the Panel agrees that Respondent has not shown any bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

 

Complainant argues that Respondent has attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website. Complainant contends that Respondent registered the domain name to create a likelihood of confusion with Complainant and Complainant’s mark in order to profit from Internet users looking for Complainant’s site who find Respondent’s site and are prompted to engage Respondent’s services. Complainant further alleges that Respondent is attempting to phish for Internet users’ personal information, namely their emails and passwords.  The record supports Complainant’s contentions.  Thus, the Panel agrees Complainant and holds that Respondent’s conduct constitutes bad faith registration and use under Policy ¶ 4(b)(iv). See MathForum.com, LLC v. Weiguang Huang, D2000-0743 (WIPO Aug. 17, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent registered a domain name confusingly similar to the complainant’s mark and the domain name was used to host a commercial website that offered similar services offered by the complainant under its mark); see also Capital One Fin. Corp. v. Howel, FA 289304 (FORUM Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients).

 

Complainant also contends that in light of the fame and notoriety of Complainant's GMAIL mark, it is inconceivable that Respondent could have registered the <gmailtechnicalsupportnumber.net> domain name without actual knowledge of Complainant's rights in the mark. The Panel agrees with Complainant, however, that Respondent most certainly had actual knowledge of Complainant's rights in the mark prior to registering the domain name and that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).

 


 DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <gmailtechnicalsupportnumber.net> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Bruce E. Meyerson, Panelist

Dated:  March 17, 2016

 

 

 

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