Google Inc. v. Vasim Machhar / AdsenseClickers
Claim Number: FA1512001651380
Complainant is Google Inc. (“Complainant”), represented by Matthew J. Snider of Dickinson Wright PLLC, Michigan, USA. Respondent is Vasim Machhar / AdsenseClickers (“Respondent”), India, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <adsenseclickers.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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 8, 2015; the Forum received payment on December 8, 2015.
On December 8, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <adsenseclickers.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 10, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 30, 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@adsenseclickers.com. Also on December 10, 2015, 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 January 5, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <adsenseclickers.com> domain name is confusingly similar to Complainant’s ADSENSE mark.
2. Respondent does not have any rights or legitimate interests in the <adsenseclickers.com> domain name.
3. Respondent registered and uses the <adsenseclickers.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses its ADSENSE mark in connection with ad placement services. Complainant holds numerous trademark registrations for the ADSENSE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,881,856, registered September 7, 2004).
Respondent registered the <adsenseclickers.com> domain name on June 8, 2014, and uses it to redirect Internet users to its website, which offers competing advertisement services.
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(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.”).
The Panel finds that Complainant has rights in the ADSENSE mark through its registration of the mark with the USPTO. See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)).
Respondent’s <adsenseclickers.com> domain name uses the ADSENSE mark and simply attaches the generic term “clickers” and the gTLD “.com.” Prior panels have found that the addition of a generic term and a gTLD do not distinguish a disputed domain name from a complainant’s mark. See Mead Johnson & Company, LLC v. Chau, FA 1497581 (Nat. Arb. Forum Jun. 18, 2013) (concluding that the addition of the generic term “coupons” and a gTLD did not remove the disputed domain name from the realm of confusing similarity). Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s ADSENSE mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent lacks rights or legitimate interests in the <adsenseclickers.com> domain name, and is not commonly known by the domain name. The Panel notes that “Vasom Machhar” is listed as registrant of the disputed domain name. Complainant states that Respondent is been not licensed or authorized to use Complainant’s ADSENSE mark. Given the lack of information to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
Complainant contends that Respondent is not using the disputed domain name provide a bona fide offering of goods or services, or a legitimate noncommercial offering of goods or services. Complainant argues that Respondent uses the disputed domain name to pass itself off as Complainant, and then offers its own competing services. The Panel agrees and finds that Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). 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).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent uses the confusingly similar disputed domain name to redirect Internet users to its own website, where it offers competing services. Panels routinely hold that such use indicates bad faith disruption under Policy ¶ 4(b)(iii). See Classic Metal Roofs, LLC v. Interlock Indus., Ltd., FA 724554 (Nat. Arb. Forum Aug. 1, 2006) (finding that the respondent registered and used the <classicmetalroofing.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iii) by redirecting Internet users to the respondent’s competing website). Accordingly, the Panel finds that Respondent has acted in bad faith under Policy ¶ 4(b)(iii).
Respondent’s redirection of Internet users to its own website, where it offers competing advertisement services, indicates bad faith under Policy ¶ 4(b)(iv). See Luck's Music Library v. Stellar Artist Mgmt., FA 95650 (Nat. Arb. Forum Oct. 30, 2000) (finding that the respondent engaged in bad faith use and registration by using domain names that were identical or confusingly similar to the complainant’s mark to redirect users to a website that offered services similar to those offered by the complainant). Thus, the Panel finds that Respondent has engaged in bad faith under Policy ¶ 4(b)(iv).
Complainant argues that Respondent registered the disputed domain name with actual and/or constructive knowledge of Complainant and its rights in the mark when registering the disputed domain name, due to the fame of the ADSENSE mark. Complainant further notes that Respondent’s references to Complainant and its ADSENSE mark demonstrate Respondent’s actual knowledge. The Panel agrees and finds that Respondent had actual knowledge of Complainant's mark and rights, further evidence of bad faith under Policy ¶ 4(a)(iii). See also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
The Panel finds that Complainant has satisfied 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 <adsenseclickers.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: January 8, 2016
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