Google LLC v. Gagan Gupta / MAVENS planet
Claim Number: FA1806001792224
Complainant is Google LLC ("Complainant"), represented by Chantal Z. Hwang of Cooley LLP, District of Columbia, USA. Respondent is Gagan Gupta / MAVENS planet ("Respondent"), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <google-elearn.com>, registered with NameCheap, Inc.
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 June 18, 2018; the Forum received payment on June 18, 2018.
On June 20, 2018, NameCheap, Inc. confirmed by email to the Forum that the <google-elearn.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 June 25, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 16, 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@google-elearn.com. Also on June 25, 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 June 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 was founded in 1997. Complainant operates the widely used GOOGLE search engine and offers a wide range of other products and services, including free web courses and training in coding and web development. Complainant's GOOGLE mark has been consistently ranked among the world's most valuable global brands. Complainant owns numerous trademark registrations for GOOGLE and related marks dating back to 1999 in jurisdictions throughout the world, including the United States and India.
Respondent registered the disputed domain name <google-elearn.com> through a privacy registration service in January 2016. The domain name is being used for a website that prominently features the GOOGLE mark and promotes services that compete directly with those offered by Complainant, including classes and training in "website design and development" and "mobile apps development." Complainant states that Respondent has not been authorized or licensed to use Complainant's mark and is not commonly known by the domain name. Complainant states further that it contacted Respondent in an effort to resolve the matter amicably, and Respondent replied by asking Complainant to pay US $1,500 for the domain name.
Complainant contends on the above grounds that the disputed domain name <google-elearn.com> is confusingly similar to its GOOGLE mark; that Respondent lacks 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 <google-elearn.com> incorporates Complainant's registered GOOGLE trademark, adding a hyphen and the generic term "elearn" (a term that refers to online learning or training) and appending the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Google LLC v. Alick Mouri, FA 1776419 (Forum Apr. 11, 2018) (finding <google‑gifts.com> confusingly similar to GOOGLE); Novartis Ag v. Susan Christensen, D2015-0476 (WIPO May 10, 2015) (finding <novartisotc‑elearning.com> confusingly similar to NOVARTIS). The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the 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 is being used for an apparently commercial website that uses Complainant's mark in a manner likely to create a false impression of association with Complainant. Such use is unlikely to give rise to rights or legitimate interests under the Policy. See, e.g., Google Inc. v. Erc Reklam, FA 1675920 (Forum June 23, 2016) (finding lack of rights or legitimate interests under similar circumstances).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed 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)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), 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."
Complainant has not provided the Panel with sufficient information regarding Respondent's alleged offer to sell the domain name to support an inference of bad faith under paragraph 4(b)(i). However, Respondent registered and is using a domain name incorporating Complainant's well-known trademark to promote what appears to be a competing business, under circumstances strongly supporting an inference that Respondent's conduct is targeted directly at Complainant or its mark. See Google Inc. v. Erc Reklam, supra (finding bad faith registration and use under similar circumstances). 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 <google-elearn.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: July 19, 2018
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