Google Inc. v. erc reklam
Claim Number: FA1605001675920
Complainant is Google Inc. ("Complainant"), represented by Melissa Alcantara of Dickinson Wright PLLC, United States of America. Respondent is erc reklam ("Respondent"), Germany.[1]
REGISTRAR AND DISPUTED DOMAIN NAME
The domain names at issue are <googlereklamvermek.com>, registered with Dynadot3 LLC; and <googlereklamverme.net>, registered with Dynadot4 LLC.
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 May 20, 2016; the Forum received payment on May 20, 2016.
On May 23, 2016, Dynadot3 LLC confirmed by email to the Forum that the <googlereklamvermek.com> and <googlereklamverme.net> domain names are registered with Dynadot3 LLC and that Respondent is the current registrant of the names. Dynadot3 LLC has verified that Respondent is bound by the Dynadot3 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 May 23, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 13, 2016 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registrations as technical, administrative, and billing contacts, and to postmaster@googlereklamvermek.com and postmaster@googlereklamverme.net. Also on May 23, 2016, 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 registrations as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On June 22, 2016, 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 was founded in 1997. Complainant operates the widely used GOOGLE search engine and offers a wide range of Internet-related products and services, including online advertising services. Complainant's GOOGLE mark was ranked as the world's most valuable brand in 2014. Complainant owns numerous trademark registrations for the GOOGLE mark dating back to 1998 in jurisdictions throughout the world, including the United States, the European Union, and Turkey.
The disputed domain names <googlereklamvermek.com> and <googlereklamverme.net> were registered by Respondent in 2013. Complainant notes that the Turkish terms "reklam vermek" and "reklam verme" translate to "to advertise" and "advertising." The domain names resolve to Turkish-language websites that promote online advertising services that compete with those offered by Complainant, and use Complainant's marks in a manner suggesting that the sites are owned by or affiliated with Complainant. Complainant states that it has not authorized Respondent to register or use the disputed domain names; that Respondent is not affiliated with, associated with, or otherwise endorsed by Complainant; and that Respondent has not been commonly known by the domain names or any name containing the GOOGLE mark.
Based upon the above grounds, Complainant contends that the disputed domain names are confusingly similar to Complainant's GOOGLE mark; that Respondent has no 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 have been 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 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.").
The disputed domain names <googlereklamvermek.com> and <googlereklamverme.net> both correspond to Complainant's registered GOOGLE trademark with a Turkish phrase meaning "to advertise" or "advertising" and the ".com" top-level domain appended thereto. These additions are insufficient to distinguish the domain names from Complainant's mark. See, e.g., Google Inc. v. Google Reklam Ek?B? / Google Reklam, FA 1602374 (Forum Feb. 25, 2015) (finding <googlereklamekibi.com> confusingly similar to GOOGLE). The Panel finds that each of the disputed domain names is identical 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 name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain names incorporate Complainant's mark without authorization, and are being used to promote services that compete with those offered by Complainant. Such use does not give rise to rights or legitimate interests under the Policy (see, e.g., Amazon Technologies, Inc. v. Irfan Arbiyani, FA 1665621 (Forum Apr. 13, 2016)), and Respondent has failed to come forward with any other basis for rights or legitimate 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 name.
Finally, Complainant must show that the disputed domain names were registered and have been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed 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 is using domain names that incorporate Complainant's well-known trademark to promote a competing business, under circumstances strongly supporting an inference that Respondent's conduct is targeted directly at Complainant or its mark. See Amazon Technologies, Inc., supra (finding bad faith registration and use under similar circumstances). The Panel therefore finds 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 <googlereklamvermek.com> and <googlereklamverme.net> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: June 23, 2016
[1] Respondent's location is identified as "goztepe kadikoy istanbul istanbul 34750 DE" in the domain name registration records—presumably an address in Turkey, notwithstanding the use of the country code for Germany.
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page