Google Inc. v. Joey Martelli
Claim Number: FA1412001595283
Complainant is Google Inc. (“Complainant”), represented by Denis V. Shamo of Dickinson Wright PLLC, District of Columbia, USA. Respondent is Joey Martelli (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <google-advertising-start.com> , registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 15, 2014; the National Arbitration Forum received payment on December 15, 2014.
On December 29, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <google-advertising-start.com> 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 December 31, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 20, 2015 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@google-advertising-start.com. Also on December 31, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On January 23, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Kenneth L. Port 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" 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
Complainant owns the GOOGLE mark through its numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,806,075, registered January 20, 2004). Complainant uses the GOOGLE mark in connection with its business as one of the top search engines in the world. Complainant operates primarily through the <google.com> domain name.
Respondent registered <google-advertising-start.com> domain name and Complainant alleges that this is confusingly similar to Complainant’s GOOGLE mark. Respondent has simply added the generic terms “advertising” and “start” to the mark, while additionally separating the words by hyphens.
As such, Complainant alleges that the Respondent has no rights or legitimate interests in the domain name, that the domain name is confusingly similar to the Complainant’s famous trademark and that the Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit an acceptable Response in this proceeding. Respondent did send the Forum a communication outside of the normal response proceedings which stated as follows in its entirety:
I am not sure what to do hear[sic], since i[sic] do not use these domains[sic] anyways. I cannot login to the portal. So could you please let me know
Joey
As Respondent has failed to file an acceptable Response, the Panel determines that the Complainant’s statements are true as alleged. As such, the Respondent has no commercial interest in the mark, it is confusingly similar to Complainant’s famous trademark and it was registered and is being used in bad faith.
In Respondent’s communication to the Forum, it appears to concede in the transfer of the domain name.
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.”).
In light of the fact that Respondent, in its non-responsive Response, appears to concede that it has no legitimate interests in the domain name and is not using it, very little discussion is warranted.
Respondent’s domain name <google-advertising-start.com> is identical to Complainant’s mark except for the addition of generic words that describe the service being proffered. As such, the Respondent’s domain name is in violation of Rule 4(a)(i) as it is identical to Complainant’s mark in relevant part.
Respondent lacks rights and legitimate interests in the disputed domain name. Respondent is not commonly known by the <google-advertising-start.com> domain name. Complainant has not licensed or authorized Respondent to use the GOOGLE mark. Respondent does not provide any bona fide offering of goods or services, or make a legitimate noncommercial or fair use of the disputed domain name.
Furthermore, Respondent seems to concede that it has no commercial interest in the domain name when it stated in its non-responsive Response, “i[sic] do not use these domains[sic] anyways.” As such, Respondent’s domain name is in violation of Rule 4(a)(ii) as it has no rights or legitimate interests in the domain name.
Respondent has used the disputed domain name to divert Internet users to its own website which competes directly with Complainant’s Internet advertising business. Respondent registered the <google-advertising-start.com> domain name with actual or constructive knowledge of Complainant’s rights in and to the GOOGLE mark. Respondent uses the disputed domain name to offer Internet advertisement placement services, which competes with Complainant and disrupts Complainant’s business. Respondent uses the disputed domain name to intentionally divert Internet users to its own website for its own commercial gain.
As such, taking the Complainant’s allegations as true as we must as Respondent failed to file an acceptable Response, Respondent has registered and is using the domain name in bad faith in violation of Rule 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 <google-advertising-start.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: January 25, 2015
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