Google Inc. v. Manish Kumar / Smith USA / Vikash / Sunil Singh
Claim Number: FA1701001711892
Complainant is Google Inc. (“Complainant”), represented by Chantal Z. Hwang of Cooley LLP, California, USA. Respondent is Manish Kumar / Smith USA / Vikash / Sunil Singh (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <gmailtechhelpnumber.com> and <gmailcustomersupportnumber.com>, registered with Godaddy.Com, LLC.; <gmailhelplinesupportnumber.com>, registered with Bigrock Solutions Ltd.; and <gmailsupportcanada.com>, registered with Tld Registrar Solutions Ltd.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 11, 2017; the Forum received payment on January 11, 2017.
On January 11, 2017, Bigrock Solutions Ltd. confirmed by e-mail to the Forum that the <gmailhelplinesupportnumber.com> domain name is registered with Bigrock Solutions Ltd. and that Respondent is the current registrant of the names.
On January 12, 2017, Godaddy.Com, LLC confirmed by e-mail to the Forum that the <gmailtechhelpnumber.com> and <gmailcustomersupportnumber.com> domain names are registered with Godaddy.Com, LLC and that Respondent is the current registrant of the names.
Also on January 12, 2017, Tld Registrar Solutions Ltd. confirmed by e-mail to the Forum that the <gmailsupportcanada.com> domain name is registered with Tld Registrar Solutions Ltd. and that Respondent is the current registrant of the names.
Tld Registrar Solutions Ltd., Bigrock Solutions Ltd., and Godaddy.Com, LLC have verified that Respondent is bound by the respective Tld Registrar Solutions Ltd., Bigrock Solutions Ltd., or 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@gmailtechhelpnumber.com, postmaster@gmailcustomersupportnumber.com, postmaster@gmailhelplinesupportnumber.com, and postmaster@gmailsupportcanada.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 Richard Hill 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 states that it is an online services provider which provides search, advertising, and various other services to Internet users. Since 1998, Google has used the GMAIL Mark in United States commerce in connection with the provision of email and electronic messaging services. Since that time, the GMAIL service has become one of the premier free, web-based email services in the world, with over one billion monthly active users as of February 2016. Complainant has rights to the GMAIL mark based upon numerous registrations around the world, with rights dating back to at least 2007.
Complainant alleges that the disputed domain names <gmailtechhelpnumber.com>, <gmailcustomersupportnumber.com>, <gmailhelplinesupportnumber.com> and <gmailsupportcanada.com> are confusingly similar to Complainant’s GMAIL mark, as each of the disputed domain names contain the mark in its entirety, and merely add descriptive and non-distinctive terms such as “help,” “support,” “tech,” “line,” “support,” “working,” and “number;” and the generic top-level domain name (“gTLD”) “.com.” The disputed domain name <gmailsupportcanada.com> additionally adds the geographically descriptive term “Canada,” which only increases the confusing similarity of the domain name. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use the GMAIL mark in any way. Respondent’s use of the disputed domain does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the disputed domain names redirect Internet users to a website that purports to offer technical support for Complainant’s GMAIL service. Complainant alleges that Respondent is likely using the disputed domain names to pass off as Complainant and run a phishing scheme. Even if the websites are not part of a phishing scheme, the services Respondent purports to provide would directly compete with those offered by Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and used the disputed domain names in bad faith. Respondent’s registration of multiple domain names incorporating the GMAIL mark indicates such registrations to be part of a pattern of bad faith registration. Also, to the extent Respondent offers any legitimate commercial services in connection with the disputed domain names, such services would be in direct competition with those offered by Complainant. Additionally, Respondent appears to further evince its bad faith by its use of the disputed domain names as part of a phishing scheme. Further, it is clear that Respondent registered and subsequently used the disputed domain names with actual or constructive knowledge of Complainant and Complainant’s rights in the GMAIL mark. Finally, registration of domain names incorporating such a well-known mark suggests opportunistic bad faith. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark GMAIL and uses it to market E-Mail services around the world. The mark is famous.
Complainant’s registration of its mark dates back to 2007.
The disputed domain names were registered in 2014 and 2015.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent is using the disputed domain names to point to websites that display Complainant’s trademark and that purport to offer services that compete with those of Complainant.
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.”).
Preliminary Issue: Multiple Respondents
Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” In the instant proceedings, Complainant has alleged that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. Complainant contends that Respondent is a single individual or entity because the websites to which the disputed domain named resolve feature nearly identical content, with similar images and some of the same toll-free phone numbers. Moreover, the disputed domain names were registered using similar or identical registrant contact information—particularly with respect to the same province in India. Additionally, some of the domain names share the same name server locations.
On the basis of the evidence in the file, the Panel finds that the disputed domain names are commonly owned/controlled by a single Respondent who is using multiple aliases. The Panel will therefore decide the case for all of the disputed domain names.
The disputed domain names <gmailtechhelpnumber.com>, <gmailcustomersupportnumber.com>, <gmailhelplinesupportnumber.com>, and <gmailsupportcanada.com> are confusingly similar to Complainant’s GMAIL mark, as each domain name contains the mark in its entirety, and merely adds descriptive and non-distinctive terms—namely: “help,” “support,” “tech,” “line,” “support,” “working,” and “number;” and the gTLD “.com.” Addition of a gTLD to a mark in order to create a domain name is irrelevant in a Policy ¶ 4(a)(i) analysis. See Isleworth Land Co. v. Lost in Space, SA, FA 117330 (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.”). Also, addition of generic or descriptive terms to a mark does not distinguish a domain name from a mark in a Policy ¶ 4(a)(i) analysis for confusing similarity. See Morgan Stanley v. Eugene Sykorsky / private person, FA 1651901 (Forum Jan. 19, 2016) (concluding that the addition of a generic term and top level domain to a trademark is inconsequential under a Policy ¶ 4(a)(i) analysis.); see also Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of descriptive terms, particularly terms that pertain to complainant’s business, do not adequately distinguish a disputed domain name from complainant’s mark under Policy ¶ 4(a)(i).).
The disputed domain name <gmailsupportcanada.com> additionally contains the geographically descriptive term “Canada.” Addition of a geographic term to a mark likewise does not distinguish a domain name. See Avaya Inc. v. Evelyn Dayda / Avaya Unlimited Sources LLC, FA 1611255 (Forum May 4, 2015) (finding that as “the ‘usa’ portion of the disputed domain name is a generic geographic term, the internet user will assume that the domain name deals with the activities of Complainant in the USA and that it will lead to a website dealing with that subject. The domain name is therefore confusingly similar to the AVAYA mark and the Panel so finds.”).
The Panel therefore finds all of the disputed domain names to be confusingly similar to Complainant’s GMAIL mark per Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use the GMAIL mark in any way. Respondent is not commonly known by the disputed domain names: where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record identifies Respondent as “Sunil Singh,” “Vikash,” “Smith USA,” or “Manish Kumar.” Additionally, lack of evidence in the record to indicate that the respondent had been authorized to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
The disputed domain names each resolve to a website which prominently displays the GMAIL word and design marks and purports to offer technical support and password recovery for the GMAIL service. To the extent that Respondent actually offers legitimate services at the resolving websites, the services would compete directly with Complainant’s business. Use of an identical or confusingly similar domain name to pass off as a complainant and compete with the complainant’s business is not a use indicative of rights or legitimate interests pursuant to Policy ¶¶ 4(c)(i) or (iii). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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 j2 Global Canada, Inc. and Landslide Technologies, Inc. v. VIJAY S KUMAR / STRATEGIC OUTSOURCING SERVICES PVT LTD, FA 1647718 (Forum Jan. 4, 2016) (finding that the disputed domain purports to offer for sale goods and services in the field of electronic marketing, which directly overlap with the services covered by Complainant’s registrations and offered by Complainant online, and therefore Respondent does not have rights or legitimate interests through its competing use).
The Panel finds that Respondent lacks rights or legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).
Complainant alleges that Respondent is selling personal information collected from misdirected Internet users as part of a phishing scheme. However, Complainant does not provide sufficient evidence to support this allegation.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s famous mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Indeed, to the extent that Respondent offers legitimate commercial services in connection with the disputed domain names, such services compete directly with Complainant’s own offered services. Use of a disputed domain name to offer services which compete with Complainant’s can be evidence of bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”); see also 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).”). The Panel recalls that the disputed domain names each resolve to a website purporting to offer support services and password recovery for users of the GMAIL service: i.e. customers of Complainant. Accordingly, the Panel finds Respondent to have acted in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv).
Further, Respondent’s registration of multiple domain names incorporating the GMAIL mark is evidence that the registrations are a part of a pattern of bad faith registration. A showing of a pattern of registrations targeting the same mark can be evidence of bad faith per 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)). The Panel finds that Respondent’s registration of four confusingly similar domain names containing the GMAIL mark is evidence of a pattern, and finds that Respondent acted in bad faith pursuant to Policy ¶ 4(b)(ii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gmailtechhelpnumber.com>, <gmailcustomersupportnumber.com>, <gmailhelplinesupportnumber.com>, and <gmailsupportcanada.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 17, 2017
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