Google LLC v. Aleksei Pas / Private Person
Claim Number: FA1802001772487
Complainant is Google LLC ("Complainant"), represented by Leila P. McClure of Dickinson Wright PLLC, Michigan, USA. Respondent is Aleksei Pas / Private Person ("Respondent"), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <youtubecoin.biz>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 19, 2018; the Forum received payment on February 19, 2018.
On February 19, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by email to the Forum that the <youtubecoin.biz> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 February 21, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 13, 2018 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@youtubecoin.biz. Also on February 21, 2018, the Written Notice of the Complaint, notifying Respondent of the email 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 March 18, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 (together with a predecessor in interest) has provided digital content distribution services under the YOUTUBE mark since 2005. YouTube has more than 1 billion users; it was the third most viewed website in the world in 2016. Complainant owns registrations for the YOUTUBE mark in the United States, Russia, Ukraine, and other jurisdictions, and also claims common law rights arising from widespread and substantial use. Complainant claims that the mark is famous, and cites a previous decision under the Policy recognizing it as such. See Google Inc. v. Alex Dori, FA 1623672 (Forum July 13, 2015).
The disputed domain name <youtubecoin.biz> was registered in September 2017. Prior to the commencement of this proceeding, the registration was held in the name of a privacy registration service, shielding the actual registrant’s identity. The domain name resolves to a website that purports to sell and manage a digital currency called “YouTubeCoin.” Complainant asserts that the site in fact promotes an illicit pyramid scheme, using the YOUTUBE mark without authorization to create a false impression that the scheme is somehow connected to or affiliated with Complainant’s service. Complainant states that it has not authorized Respondent to use its mark, and alleges that Respondent is not commonly known by the disputed domain name or any name containing the YOUTUBE mark.
Complainant contends on the above grounds that the disputed domain name <youtubecoin.biz> is confusingly similar to a mark in which Complainant has rights; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
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 disputed domain name <youtubecoin.biz> merely adds the generic term “coin” and the ".biz" top-level domain to Complainant's registered mark YOUTUBE. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Google Inc. v. Alex Dori, supra (finding <youtubeonfire.ws> confusingly similar to YOUTUBE); Google Inc. v. Yongqi Liu, FA 1297473 (Forum Jan. 15, 2010) (finding <googleinvest.biz> confusingly similar to GOOGLE). The Panel therefore considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's mark without authorization, and its sole apparent use has been to promote what appears to be a fraudulent scheme. Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iv) of the Policy, bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location." The instances set forth in paragraph 4(b) are illustrative rather than exhaustive, and bad faith may be found based upon other circumstances in appropriate cases. See Emerson Electric Co. v. Mariusz Kowalczyk, FA 1770167 (Forum Feb. 28, 2018).
In the Panel's view, Respondent's registration and use of a domain name incorporating Complainant's mark to promote a fraudulent scheme, in a manner undoubtedly intended to create the false appearance of a connection or affiliation with Complainant, is indicative of bad faith under the Policy. See, e.g., Facebook, Inc. v. Pratap Parsoriya, FA 1762972 (Forum Jan. 11, 2018) (finding bad faith under similar circumstances). Respondent's use of a privacy registration service in an attempt to conceal its identity, though not itself dispositive, is a further indication of bad faith. See, e.g., Wells Fargo & Company v. Domain Vault / Domain Vault LLC, FA 1765145 (Forum Feb. 5, 2018). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <youtubecoin.biz> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: March 26, 2018
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