Google Inc. v. Ravi Singh
Claim Number: FA1611001701319
Complainant is Google Inc. (“Complainant”), represented by Chantal Z. Hwang of Cooley LLP, California, USA. Respondent is Ravi Singh (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <gmail-support-australia.net>, <gmail-support-number.net>, <gmail-support-australia.co>, <gmail-support-australia.org>, <gmail-support-number.org>,<gmailhelpau.com>, <gmailassistanceaustralia.com>, <gmail-help-australia.com>, <gmail-help-australia.net>, <gmailhelpaustralia.net>, <gmail-helpline-australia.com>, <gmailhelplineaustralia.com>,<gmail-help-number.com>, <gmailserviceaustralia.com>, <gmailsupport.info>, <gmailsupportnumber.info>, <gmailsupportnumber.net>, and <gmailsupportnumber.org>, registered with GoDaddy.com, 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.
Hon. Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 3, 2016; the Forum received payment on November 3, 2016.
On November 4, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <<gmail-support-australia.net>, <gmail-support-number.net>, <gmail-support-australia.co>, <gmail-support-australia.org>, <gmail-support-number.org>, <gmailhelpau.com>, <gmailassistanceaustralia.com>, <gmail-help-australia.com>, <gmail-help-australia.net>, <gmailhelpaustralia.net>, <gmail-helpline-australia.com>, <gmailhelplineaustralia.com>, <gmail-help-number.com>, <gmailserviceaustralia.com>, <gmailsupport.info>, <gmailsupportnumber.info>, <gmailsupportnumber.net>, and <gmailsupportnumber.org> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 November 7, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 28, 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@gmail-support-australia.net, postmaster@gmail-support-number.net, postmaster@gmail-support-australia.co, postmaster@gmail-support-australia.org, postmaster@gmail-support-number.org, postmaster@gmailhelpau.com, postmaster@gmailassistanceaustralia.com, postmaster@gmail-help-australia.com, postmaster@gmail-help-australia.net, postmaster@gmailhelpaustralia.net, postmaster@gmail-helpline-australia.com, postmaster@gmailhelplineaustralia.com, postmaster@gmail-help-number.com, postmaster@gmailserviceaustralia.com, postmaster@gmailsupport.info, postmaster@gmailsupportnumber.info, postmaster@gmailsupportnumber.net, postmaster@gmailsupportnumber.org. Also on November 7, 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 November 30, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) 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
Policy ¶ 4(a)(i)
Complainant has rights in the GMAIL mark through its registration with various trademark registration agencies. Respondent’s domain names are confusingly similar to the GMAIL mark because they each contain the mark along with non-distinctive, descriptive, or geographical terms.
Policy ¶ 4(a)(ii)
Respondent is not commonly known by the disputed domain names because the available WHOIS information identifies “Ravi Singh” as Registrant and Respondent has not been authorized to use the GMAIL mark. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the <gmail-support-australia.net> and <gmail-support-number.net> domain names resolve to websites attempting to pass off as Complainant while engaging in phishing and/or competitive activities while the <gmail-support-australia.co>, <gmail-support-australia.org>, <gmail-support-number.org>, <gmailhelpau.com>, <gmailassistanceaustralia.com>, <gmail-help-australia.com>, <gmail-help-australia.net>, <gmailhelpaustralia.net>, <gmail-helpline-australia.com>, <gmailhelplineaustralia.com>, <gmail-help-number.com>, <gmailserviceaustralia.com>, <gmailsupport.info>, <gmailsupportnumber.info>, <gmailsupportnumber.net>, and <gmailsupportnumber.org> domain names each resolve to inactive websites.
Policy ¶ 4(a)(iii)
Respondent has engaged in a pattern of bad faith registration and use of domain names by registering multiple domain names at issue here. Respondent uses the disputed domain name in bad faith because the <gmail-support-australia.net> and <gmail-support-number.net> domain names resolve to websites engaging in phishing and/or competitive activities. Respondent registered all of the at-issue domain names in bad faith because it did so under circumstances suggesting knowledge of Complainant’s rights in the GMAIL mark and indicative of opportunistic bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, the Panel finds Complainant is entitled to the requested relief of transfer of the <<gmail-support-australia.net>, <gmail-support-number.net>, <gmail-support-australia.co>, <gmail-support-australia.org>, <gmail-support-number.org>, <gmailhelpau.com>, <gmailassistanceaustralia.com>, <gmail-help-australia.com>, <gmail-help-australia.net>, <gmailhelpaustralia.net>, <gmail-helpline-australia.com>, <gmailhelplineaustralia.com>, <gmail-help-number.com>, <gmailserviceaustralia.com>, <gmailsupport.info>, <gmailsupportnumber.info>, <gmailsupportnumber.net>, and <gmailsupportnumber.org> domain names.
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 (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.”).
Complainant claims rights in the GMAIL mark through its registration with various trademark registration agencies. Complainant has provided a table containing information relevant to such registrations. The Panel finds this information sufficient to demonstrate the GMAIL mark has been registered with a trademark registration agency, and finds that Complainant holds rights in the GMAIL mark. See Fossil Group, Inc. v. wuruima wu, FA 1544486 (Forum March 21, 2014) (holding, “Complainant’s registration of the FOSSIL mark with trademark agencies worldwide, including the USPTO and SAIC, establishes Complainant’s rights in the FOSSIL mark pursuant to Policy ¶ 4(a)(i).”).
Complainant alleges that Respondent’s <gmail-support-australia.net>, <gmail-support-number.net>, <gmail-support-australia.co>, <gmail-support-australia.org>, <gmail-support-number.org>, <gmailhelpau.com>, <gmailassistanceaustralia.com>, <gmail-help-australia.com>, <gmail-help-australia.net>, <gmailhelpaustralia.net>, <gmail-helpline-australia.com>, <gmailhelplineaustralia.com>, <gmail-help-number.com>, <gmailserviceaustralia.com>, <gmailsupport.info>, <gmailsupportnumber.info>, <gmailsupportnumber.net>, and <gmailsupportnumber.org> domain names are confusingly similar to the GMAIL mark because they each contain the mark along with non-distinctive, descriptive, or geographical terms. The Panel notes that many of the domain names also contain hyphens while each domain name also contains a generic top-level domain (“gTLD”), or a country-code top-level domain (“ccTLD”) such as “.org,” “.net,” “.com,” “.info,” or “.co.” Complainant urges that the terms “assistance,” “help,” “support,” “number,” and “service” are non-distinctive or descriptive of Complainant’s use of the GMAIL mark, while the terms “australia” and “au” are merely geographic identifiers. The Panel agrees with Complainant’s characterizations of the additional terms and finds that each of the disputed domain names is confusingly similar to Complainant’s GMAIL mark. See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.); see also Doosan Corporation v. philippe champain, FA 1636675 (Forum Oct. 13, 2015) (finding that geographic designations or terms descriptive of a complainant’s business operations do not remove a domain name from the realm of confusing similarity.); see also Health Devices Corp. v. Aspen S T C, FA 158254 (Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”).
Complainant has proved this element.
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names under Policy ¶ 4(a)(ii), and then 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 (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 (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 is not commonly known by the <gmail-support-australia.net>, <gmail-support-number.net>, <gmail-support-australia.co>, <gmail-support-australia.org>, <gmail-support-number.org>, <gmailhelpau.com>, <gmailassistanceaustralia.com>, <gmail-help-australia.com>, <gmail-help-australia.net>, <gmailhelpaustralia.net>, <gmail-helpline-australia.com>, <gmailhelplineaustralia.com>, <gmail-help-number.com>, <gmailserviceaustralia.com>, <gmailsupport.info>, <gmailsupportnumber.info>, <gmailsupportnumber.net>, and <gmailsupportnumber.org> disputed domain names because the available WHOIS information identifies “Ravi Singh” as Registrant and Respondent has not been authorized to use the GMAIL mark. The Panel finds a lack of contrary evidence and agrees that Respondent has not been commonly known by the disputed domain names according to Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant contends that Respondent fails to use the <gmail-support-australia.net> and <gmail-support-number.net> domain names to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because each domain name resolves to a website attempting to pass off as Complainant while engaging in phishing and/or competitive activities. Complainant has provided screenshots of the <gmail-support-australia.net> domain name to demonstrate that the website purports to be a “Gmail Help Center” offering technical support including password recovery services. Complainant has also provided screenshots of the <gmail-support-number.net> domain name to demonstrate that the website purports to be a “Macpatchers” offering technical support including password recovery services. Complainant urges that these domains are used to obtain information from customers for the purposes of phishing, and maintains that if these websites do offer the services they purport to offer, such services would be competitive with those services of Complainant. The Panel finds Complainant’s evidence supportive of its arguments and finds that the <gmail-support-australia.net> and <gmail-support-number.net> domain names are not used to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶4(c)(i) and ¶4(c)(iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum April 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was 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) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum March 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute 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 also Virtu Financial Operating, LLC v. Lester Lomax, FA1409001580464 (Forum November 14, 2014) (finding that the respondent had 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) where the respondent was using the disputed domain name to phish for Internet users personal information by offering a fake job posting on the resolving website).
Complainant maintains that Respondent fails to use the remaining domain names to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the <gmail-support-australia.co>, <gmail-support-australia.org>, <gmail-support-number.org>, <gmailhelpau.com>, <gmailassistanceaustralia.com>, <gmail-help-australia.com>, <gmail-help-australia.net>, <gmailhelpaustralia.net>, <gmail-helpline-australia.com>, <gmailhelplineaustralia.com>, <gmail-help-number.com>, <gmailserviceaustralia.com>, <gmailsupport.info>, <gmailsupportnumber.info>, <gmailsupportnumber.net>, and <gmailsupportnumber.org> domain names each resolve to inactive websites. Complainant has provided screenshots of each resolving website to demonstrate this use. The Panel agrees that the websites are inactive, and finds that such uses are not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Complainant has proved this element.
Complainant claims that Respondent has engaged in a pattern of bad faith registration and use of domain names by registering the multiple domain names at issue here. Prior panels have agreed that the registration of multiple domain names containing a complainant’s mark is sufficient to demonstrate a pattern under Policy ¶ 4(b)(ii). See Microsoft Corporation and Skype v. zhong biao zhang / Unknown company / zhong zhang, FA1401001538218 (Forum February 20, 2014) (holding that the respondent’s registration of three domain names incorporating variants of the complainant’s SKYPE mark reflected a pattern of bad faith registration under Policy ¶ 4(b)(ii)). As such, the Panel finds that Respondent has demonstrated a pattern of bad faith registration and use of the domain names.
Complainant argues that Respondent uses the <gmail-support-australia.net> and <gmail-support-number.net> domain names in bad faith because they each resolve to websites engaging in phishing and/or competitive activities. Complainant has provided screenshots of the <gmail-support-australia.net> domain name to demonstrate that the website purports to be a “Gmail Help Center” offering technical support including password recovery services. Complainant has also provided screenshots of the <gmail-support-number.net> domain name to demonstrate that the website purports to be a “Macpatchers” offering technical support including password recovery services. Complainant urges that these domains are used to obtain information from customers for the purposes of phishing, and maintains that if these websites do offer the services they purport to offer, such services would be competitive with those services of Complainant. The Panel finds Complainant’s evidence supportive of its arguments and finds that the <gmail-support-australia.net> and <gmail-support-number.net> domain names are used in bad faith according to Policy ¶ 4(b)(iv) and/or Policy ¶ 4(a)(iii). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA1506001625750 (Forum July 17, 2015) (“Respondent uses the <klabzuba-oilgas.com> domain to engage in phishing, which means Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii).”).
Complainant maintains that Respondent registered the <gmail-support-australia.net>, <gmail-support-number.net>, <gmail-support-australia.co>, <gmail-support-australia.org>, <gmail-support-number.org>, <gmailhelpau.com>, <gmailassistanceaustralia.com>, <gmail-help-australia.com>, <gmail-help-australia.net>, <gmailhelpaustralia.net>, <gmail-helpline-australia.com>, <gmailhelplineaustralia.com>, <gmail-help-number.com>, <gmailserviceaustralia.com>, <gmailsupport.info>, <gmailsupportnumber.info>, <gmailsupportnumber.net>, and <gmailsupportnumber.org> domain names in bad faith because it did so under circumstances suggesting knowledge of Complainant’s rights in the GMAIL mark and indicative of opportunistic bad faith. Complainant urges that the domain names are so obviously connected with Complainant’s GMAIL mark and that the mark is so unique and famous that such domain name registrations would be incredibly unlikely independent of knowledge of Complainant’s mark. The Panel agrees and finds that Respondent registered the domain names in bad faith. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); see also Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).
Complainant has proved this element.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gmail-support-australia.net>, <gmail-support-number.net>, <gmail-support-australia.co>, <gmail-support-australia.org>, <gmail-support-number.org>,<gmailhelpau.com>, <gmailassistanceaustralia.com>, <gmail-help-australia.com>, <gmail-help-australia.net>, <gmailhelpaustralia.net>, <gmail-helpline-australia.com>, <gmailhelplineaustralia.com>,<gmail-help-number.com>, <gmailserviceaustralia.com>, <gmailsupport.info>, <gmailsupportnumber.info>, <gmailsupportnumber.net>, and <gmailsupportnumber.org> domain names be TRANSFERRED from Respondent to Complainant.
__________________________________________________________________
Hon. Karl V. Fink (Ret.) Panelist
Dated: December 2, 2016
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page