Google LLC v. Adrian Ionescu
Claim Number: FA1712001761717
Complainant is Google LLC (“Complainant”), represented by Leila P. McClure of Dickinson Wright PLLC, Mississippi, USA. Respondent is Adrian Ionescu (“Respondent”), Romania.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <getchrome.co>, 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 Forum electronically on December 7, 2017; the Forum received payment on December 7, 2017.
On December 8, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <getchrome.co> 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 11, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 2, 2018 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@getchrome.co. Also on December 11, 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 January 5, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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
Complainant offers a wide range of Internet-related products and services, including Internet browser software, one of the world’s largest search engine services, cloud services, social networking platforms, automated online language translation services, mapping services, and online advertising services. Complainant has rights in the CHROME mark by registering it with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 3,360,331, registered Dec. 25, 2007). See Compl. Annex 12. Respondent’s <getchrome.co> is confusingly similar to Complainant’s CHROME mark because it adds the descriptive term “get” and the “.co” country code-top level domain (“ccTLD”) to Complainant’s wholly incorporated mark.
Respondent has no rights or legitimate interests in the <getchrome.co> domain name because it is not authorized or licensed to use the CHROME mark. Additionally, Respondent is not commonly known by the <getchrome.co> domain name and WHOIS record makes no mention of the disputed domain name or CHROME mark. See Amend Compl. Annex 18. Respondent did not make a bona fide offering of goods or services or a legitimate noncommercial or fair use on its domain name. Rather, the disputed domain name resolves to a website that purports to offer free installation of Complainant’s CHROME browser but instead download potentially harmful malicious software. See Compl. Annex 14.
Respondent registered and used the <getchrome.co> domain name in bad faith. For instance, Respondent attempted to divert Internet users by creating a likelihood of confusion with Complainant’s CHROME mark as to the source, sponsorship, affiliation, or endorsement of the resolving website and the software promoted on it. In this case, Respondent used the disputed domain name to download unwanted, intrusive software or malware and this is indicative of bad faith. See Compl. Annex 14. Additionally, Respondent’s use of an disclaimer with very small type did not negate users from believing Respondent’s site is affiliated with Complainant. Furthermore, Respondent had actual notice of Complainant’s CHROME mark based off the fame and worldwide trademark registrations of Complainant’s mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered its <getchrome.co> domain name on August 2, 2017.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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.”).
The Panel finds that the disputed domain name, <getchrome.co>, is confusingly similar to Complainant’s valid and subsisting trademark, CHROME. Complainant has adequately pled it rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely adding the generic word “get” and the g TLD “.co” to the trademark in its entirety. This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or to the disputed domain name. Respondent has no rights, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name.
Respondent is not using the <getchrome.co> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent apparently offers free installation of Complainant’s CHROME browser, but instead installs malicious software. Generally, passing off as a complainant to sell its products does not amount to a right or legitimate interests in the domain name. See Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of 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 of the disputed domain name pursuant to Policy ¶ 4(c)(iii)); see also Ceridian Corp. v. Versata Software, Inc., FA 1259927 (Forum June 23, 2009) (finding that a respondent’s use of a disputed domain name to direct Internet users to a website which attempts to download computer viruses “failed to create any semblance of 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 asserts that, in this case, Respondent’s <getchrome.co> domain name purports to offer free downloads of Complainant’s CHROME Internet browser and displays Complainant’s stylized CHROME mark in an attempt to pass off as Complainant and distribute malicious software to display offers to deceived Internet users. See Compl. Annex 14-17. Therefore, the Panel finds that Respondent failed to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) and (iii).
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent has engaged in bad faith use and registration of the disputed domain name. The disputed domain name was apparently registered and used in bad faith Respondent by intentionally diverting Internet users seeking to engage with Complainant to Respondent’s own website. A general intent to divert users is indicative of bad faith registration and use per Policy ¶ 4(b)(iv). See MySpace, Inc. v. Myspace Bot, FA 672161 (Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme). Here, Complainant asserts Respondent’s <getchrome.co> domain name purports to offer a free version of Complainant’s CHROME browser and prompts users to download its software. See Compl. Annex 14-17. Therefore, the Panel finds Respondent’s <getchrome.co> domain name diverts users and was registered and used in bad faith per Policy ¶ 4(b)(iv).
Next, Complainant alleges Respondent acted in bad faith by using its <getchrome.co> domain name to resolve into a website that downloads unwanted, intrusive software or malware. Use of an at-issue resolving website to install malware may demonstrate bad faith registration and use. See Amazon Technologies, Inc. v. Timothy Mays aka Linda Haley aka Edith Barberdi, FA1504001617061 (Forum June 9, 2015) (“In addition, Respondent’s undenied use of the websites resolving from the contested domain names to distribute malware and other malicious downloads further illustrates its bad faith in the registration and use of those domain names.”). Complainant alleges Respondent’s <getchrome.co> domain name purports to offer Complainant’s CHROME Internet browser for free and prompts users to run its software. See Compl. Annex 14-17. As such, the Panel finds that Respondent’s <getchrome.co> domain name installs malware and thus indicates bad faith registration and use per Policy ¶ 4(a)(iii).
Additionally, Complainant claims Respondent displayed a disclaimer at its domain name, but the disclaimer’s print is very small and users are unlikely to notice or comprehend it. The mere existence of a disclaimer does not mitigate a respondent’s bad faith actions, particularly if it is inconspicuous, per Policy ¶ 4(a)(iii). See Coachella Music Festival, LLC v. Beaudoin, Denis / Denis Beaudoin, FA 1724063 (Forum May 9, 2017) (finding respondent’s disclaimer insufficient because “[t]he disclaimer is in small print, although it can be read, and it is in a position at the bottom of each page where it may well be overlooked and in any event it comes after the services offered on each page of the site… [t]he result is that each page starts with Complainant’s unique stylized trademark and ends with a less than prominent or effective disclaimer.”). In this case, Complainant contends that a disclaimer is visible and contains small print at Respondent’s <getchrome.co> domain name. See Compl. Annex 14. Therefore, the Panel finds that Respondent’s disclaimer is insufficient to mitigate confusion or cure bad faith per Policy ¶ 4(a)(iii).
Last, Complainant also contends that in light of the fame and notoriety of Complainant's CHROME mark, and the totality of the circumstances, Respondent proceeded with prior actual knowledge of its rights in and to the trademark CHROME. The Panel finds that Respondent had prior actual knowledge of Complainant and its rights and interests in the trademark CHROME.
As such, the Panel finds that Respondent engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <getchrome.co> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: January 8, 2018
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