Google Inc. v. Seshchand Atluri
Claim Number: FA1105001386643
Complainant is Google Inc. (“Complainant”), represented by Kiran K. Belur of Fenwick & West, LLP, California, USA. Respondent is Seshchand Atluri (“Respondent”), Michigan, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <googleplusone.com>, registered with Melbourne IT Ltd. d/b/a Internet Names Worldwide.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on May 2, 2011; the National Arbitration Forum received payment on May 2, 2011.
On May 3, 2011, Melbourne IT Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <googleplusone.com> domain name is registered with Melbourne IT Ltd. d/b/a Internet Names Worldwide and that Respondent is the current registrant of the name. Melbourne IT Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound by the Melbourne IT Ltd. d/b/a Internet Names Worldwide 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 9, 2011, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 31, 2011 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@googleplusone.com. Also on May 9, 2011, 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 registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On June 3, 2011, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Ralph Yachnin 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" 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 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 <googleplusone.com> domain name is confusingly similar to Complainant’s GOOGLE mark.
2. Respondent does not have any rights or legitimate interests in the <googleplusone.com> domain name.
3. Respondent registered and used the <googleplusone.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Google Inc., was created in 1997 and has become one of the largest and widely used Internet search services. Complainant’s primary website is located at <google.com>. Complainant holds multiple trademark registrations for its GOOGLE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,954,071 issued May 24, 2005).
Respondent, Seshchand Atluri, registered the disputed domain name on May 8, 2008. The disputed domain name resolves to a parked website from which Respondent presumably profits.
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 submits evidence of multiple USPTO trademark registrations for its GOOGLE mark (e.g., Reg. No. 2,954,071 issued May 24, 2005). Previous panels have held that a USPTO trademark registration is sufficient evidence of a complainant’s rights in a mark under Policy ¶ 4(a)(i). See Am. Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)”); see also Bloomberg L.P. v. Johnston, FA 760084 (Nat. Arb. Forum Oct. 25, 2006) (finding that the complainant had established rights in the BLOOMBERG mark through registration with the United States Patent and Trademark Office). The Panel, relying on the above cited precedent, finds that Complainant has demonstrated rights in its GOOGLE mark.
Complainant alleges that Respondent’s <googleplusone.com> domain name is confusingly similar to Complainant’s GOOGLE mark. Complainant states that it offers a +1 (pronounced “plus one”) feature in connection with its online tool which allows users to publicly endorse, show support for, or put their “stamp of approval” on something. Therefore, Respondent’s addition of the terms “plus one” constitutes the addition of descriptive terms, which this Panel finds fail to differentiate the disputed domain name from Complainant’s mark. See 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.”); see also Gillette Co. v. RFK Assocs., FA 492867 (Nat. Arb. Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL mark). Additionally, the disputed domain name appends the generic top-level domain (“gTLD”) “.com.” The Panel recognizes that a top-level domain is a required element of every domain name and thus, the addition of the “.com” in the case at hand has no bearing upon the confusingly similar analysis. 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.”). Therefore, the Panel finds that, pursuant to Policy ¶ 4(a)(i), Respondent’s <googleplusone.com> domain name is confusingly similar to Complainant’s GOOGLE mark.
The Panel finds that Complainant has satisfied the elements of Policy ¶ 4(a)(i).
Complainant asserts that Respondent lacks rights and legitimate interests in the disputed domain name. The Panel finds that Complainant has established its required prima facie case based on the arguments contained in the Complaint and has thus satisfied its burden under Policy ¶ 4(a)(ii). Accordingly, the burden of proof now shifts to Respondent to prove that it has rights or legitimate interests in the <googleplusone.com> domain name. See AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”). Respondent has not submitted a Response in this proceeding, an omission which allows the Panel to infer that Respondent does in fact lack rights and legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”). Nevertheless, the Panel will examine the record in light of the Policy ¶ 4(c) factors to determine Respondent’s rights or legitimate interests in the disputed domain name, if any.
Complainant states that, upon information and belief, Respondent is not commonly known by the disputed domain name or any other name containing Complainant’s GOOGLE mark. In support of its contention, Complainant refers to the WHOIS information which indicates that the registrant of the domain name is “Seshchand Atluri.” Additionally, Complainant asserts that it has not authorized or licensed Respondent to use its GOOGLE mark in any way. The Panel agrees with Complainant and finds that there is no evidence indicating that Respondent is commonly known by the disputed domain name. Therefore, the Panel concludes that Respondent cannot establish rights and legitimate interests in the <googleplusone.com> 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 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 disputed domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant asserts that the disputed domain name is currently parked and resolves to a domain registration page that has been monetized with click-through ads, from which Respondent presumably profits. The Panel finds that Respondent’s use of the disputed domain name to resolve to a website that features links to Complainant and its various products and services 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 Royal Bank of Scotland Grp plc et al. v. Demand Domains, FA 714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a commercial web directory displaying various links to third-party websites was not a use in connection with 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), as the respondent presumably earned “click-through” fees for each consumer it redirected to other websites); see also Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names).
The Panel finds that Complainant has satisfied the elements of Policy ¶ 4(a)(ii).
Complainant argues that Respondent’s disputed domain name resolves to a parked website containing click-through ads and thus constitutes bad faith registration and use. The Panel finds that Respondent’s likely attempts to commercially benefit from the registration and use of the confusingly similar disputed domain name is evidence of bad faith 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 Williams-Sonoma, Inc. v. Fees, FA 937704 (Nat. Arb. Forum Apr. 25, 2007) (holding that the use of a confusingly similar domain name to display links to various third-party websites demonstrated bad faith registration and use pursuant to Policy ¶ 4(b)(iv)).
The Panel finds that Complainant has satisfied the elements of 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 <googleplusone.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: June 3, 2011
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page