Google Inc. v. Pooja Pandey / Innovative Businesss Solutions
Claim Number: FA1701001711869
Complainant is Google Inc. (“Complainant”), represented by Chantal Z. Hwang of Cooley LLP, California, USA. Respondent is Pooja Pandey / Innovative Businesss Solutions (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <gmailsupport-newzeeland.com> and <gmail-number-australia.com>, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 11, 2017; the Forum received payment on January 11, 2017.
On January 12, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <gmailsupport-newzeeland.com> and <gmail-number-australia.com> 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 January 16, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 6, 2017 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@gmailsupport-newzeeland.com, postmaster@gmail-number-australia.com. Also on January 16, 2017, 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 February 16, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (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
Complainant, Google, Inc., is a leading technology and internet services corporation. Complainant owns and operates its GMAIL service to provide free, web-based email services; and provides its users with the “Gmail Help Center” to provide support and information regarding, among other topics, GMAIL accounts, messages, contacts, and technical issue troubleshooting. Complainant has rights to the GMAIL mark based upon registration with the United States Patent and Trademark Office, (“USPTO”) as well as other trademark agencies throughout the world (e.g., Reg. No. 3,150,462, registered Oct. 3, 2006). The <gmailsupport-newzeeland.com> and <gmail-number-australia.com> domain names are confusingly similar, as they contain the GMAIL mark in its entirety, differing only through the addition of one or more of the generic or descriptive terms “support,” or “number;” and/or the geographic terms “Australia” or “NewZeeland” (common misspelled version of New Zealand). Both domains include hyphens, and both append the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in <gmailsupport-newzeeland.com> and <gmail-number-australia.com>. Respondent is not commonly known by either of the domain names, nor has Complainant authorized or licensed Respondent to use any of its marks. Respondent’s <gmailsupport-newzeeland.com> and <gmail-number-australia.com> purport to offer tech support services, including password recovery services, to users of Complainant’s email service, instructing them to call a toll-free number for assistance. This constitutes a “phishing scheme” whereby Respondent attempts to collect Internet users’ confidential Gmail passwords, and is not a bona fide offering of goods or services or any legitimate noncommercial or fair use.
Respondent registered and used <gmailsupport-newzeeland.com> and <gmail-number-australia.com> in bad faith. Respondent’s registration of two domain names containing Complainant’s mark is evidence of registration and use in bad faith under Policy ¶ 4(b)(ii). Further, Respondent’s competing tech support services, to an extent they purport to be legitimate, disrupts Complainant’s business and is bad faith under Policy ¶ 4(b)(iv). Further, Respondent’s attempt to phish for Internet users’ personal information, coupled with its actual/constructive knowledge of Complainant, demonstrates bad faith under Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Google, Inc., is a leading technology and internet services corporation. Complainant owns and operates its GMAIL service to provide free, web-based email services; and provides its users with the “Gmail Help Center” to provide support and information regarding, among other topics, GMAIL accounts, messages, contacts, and technical issue troubleshooting. Complainant has rights to the GMAIL mark based upon registration with the United States Patent and Trademark Office, (“USPTO”) as well as other trademark agencies throughout the world (e.g., Reg. No. 3,150,462, registered Oct. 3, 2006). The <gmailsupport-newzeeland.com> and <gmail-number-australia.com> domain names are confusingly similar to Complainant’s GMAIL mark.
Respondent, Pooja Pandey / Innovative Businesss Solutions registered <gmailsupport-newzeeland.com> and <gmail-number-australia.com> on October 14, 2015 and October 13, 2015, respectively.
Respondent has no rights or legitimate interests in <gmailsupport-newzeeland.com> and <gmail-number-australia.com>. Respondent is not commonly known by either of the domain names. Complainant has not authorized or licensed Respondent to use its mark. Respondent uses the <gmailsupport-newzeeland.com> and <gmail-number-australia.com> domain names for a “phishing scheme.”
Respondent registered and used <gmailsupport-newzeeland.com> and <gmail-number-australia.com> in bad faith. Respondent’s registration of two domain names containing Complainant’s mark is registration and use in bad faith under Policy ¶ 4(b)(ii). Respondent’s competing tech support services, to an extent they purport to be legitimate, disrupts Complainant’s business and is bad faith under Policy ¶ 4(b)(iv). Further, Respondent’s attempt to phish for Internet users’ personal information is bad faith under Policy ¶ 4(a)(iii).
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 has rights to the GMAIL mark under Policy ¶ 4(a)(i) based upon registration with the USPTO as well as other trademark agencies throughout the world. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (“USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i)”). A respondent’s country of origin does not bear on a complainant’s rights under the Policy. See Viber Media S.à r.l. v. Kristaps Sirmais / SIA "FUN FACTORY", FA 1626671 (Forum Aug. 4, 2015) (“Accordingly, even though Respondent reportedly resides in Latvia, the Panel finds find that Complainant’s USPTO registration is sufficient under Policy ¶ 4(a)(i).”).
Respondent’s <gmailsupport-newzeeland.com> and <gmail-number-australia.com> domain names are confusingly similar under Policy ¶ 4(a)(i), as they contain the GMAIL mark in its entirety, differing only through the addition of one or more of the generic or descriptive terms “support,” or “number;” and/or the geographic terms “Australia” or “NewZeeland” (common misspelled version of New Zealand). Both of the domains include hyphens, and both append the gTLD “.com.”
Respondent has no rights or legitimate interests in <gmailsupport-newzeeland.com> and <gmail-number-australia.com>. Respondent is not commonly known by either of the domain names under Policy ¶ 4(c)(ii). Complainant has not authorized or licensed Respondent to use its marks. The WHOIS information lists “Pooja Pandey / Innovative Businesss Solutions” as registrant. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”).
Respondent’s <gmailsupport-newzeeland.com> and <gmail-number-australia.com> purport to offer tech support services, including password recovery services, to users of Complainant’s email service, instructing them to call a toll-free number for assistance. This constitutes a “phishing scheme,” which is not a bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii). See generally Wells Fargo & Co. v. WhoisGuard, FA 1103650 (Forum Dec. 13, 2007) (“There is no dispute that respondent previously used the disputed domain name to obtain personal and financial information from Internet customers of complainant. This fraudulent use [is] known as ‘phishing’”); see also Google Inc. v. Pritam Singh / Pandaje Technical Services Pvt Ltd., FA 1660771 (Forum Mar. 17, 2016) (respondent failed to show a bona fide offering of goods or services or any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) as the respondent used the complainant’s mark and logo on a resolving website containing offers for technical support and password recovery services, and soliciting Internet users’ personal information).
Respondent registered and used <gmailsupport-newzeeland.com> and <gmail-number-australia.com> in bad faith. First, registration of multiple infringing domain names is bad faith under Policy ¶ 4(b)(ii). See Albertson's, Inc. v. Bennett, FA 117013 (Forum Sept. 5, 2002) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(ii) in the respondent’s registration of the <albertsonscoupons.com> and <albertsons-coupons.com> domain names because the respondent “registered the domain names in order to prevent Complainant from registering its common law ALBERTSON’S COUPON mark in a corresponding domain name”).
Respondent’s offering competing tech support services, to an extent they purport to be legitimate, disrupts Complainant’s business and is bad faith under Policy ¶ 4(b)(iv). See OneWest Bank N.A. v. Matthew Foglia, FA1503001611449 (Forum Apr. 26, 2015) (holding that the respondent’s use of the disputed domain name to direct Internet users to a website which competed with the complainant was evidence of bad faith pursuant to Policy ¶ 4(b)(iv)).
Further, Respondent’s attempt to phish for Internet users’ personal information is bad faith under Policy ¶ 4(a)(iii). See 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).”).
Also, Respondent had actual knowledge of Complainant’s GMAIL mark when registering and using the disputed domain names. Therefore, Respondent has engaged in bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Ahmed Humood, FA1411001591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to an in competition with Complainant.”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gmailsupport-newzeeland.com> and <gmail-number-australia.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: February 26, 2017
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