DECISION

 

Google LLC v. Sushant mustang

Claim Number: FA1808001802465

 

PARTIES

Complainant is Google LLC (“Complainant”), represented by Aimee R. Gibbs of Dickinson Wright PLLC, Michigan, USA.  Respondent is Sushant mustang (“Respondent”), India.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <googlehome.support>, registered with GoDaddy.com, LLC.

 

PANEL

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.

 

Paul M. DeCicco, as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on August 21, 2018; the Forum received payment on August 21, 2018.

 

On August 22, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <googlehome.support> 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 August 22, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 11, 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@googlehome.support.  Also on August 22, 2018, 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 September 13, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends as follows:

 

Complainant, Google LLC, offers a wide range of Internet-related products and services, including Internet search and online advertising services. Complainant also offers a wide range of computer hardware products and accessories, including smart speakers, under its GOOGLE and GOOGLE HOME marks.

 

Complainant has rights in its GOOGLE mark through registration with the United States Patent and Trademark Office (“USPTO”).

 

Further, Complainant has rights in its GOOGLE HOME mark through registration with trademark authorities in numerous countries around the world.

 

Respondent’s <googlehome.support> domain name is identical or confusingly similar to Complainant’s GOOGLE HOME mark as it merely adds the generic top-level domain (“gTLD”) “.support.”

 

Respondent does not have rights or legitimate interests in the <googlehome.support> domain name. Complainant has not licensed or otherwise authorized Respondent to use its GOOGLE or GOOGLE HOME marks in any fashion. Respondent is also not commonly known by the at-issue domain name as the WHOIS information of record lists “Sushant mustang” as the registrant.

 

Respondent is not using the <googlehome.support> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent used the domain name to pass itself off as Complainant’s affiliate by resolving to a website featuring Complainant’s mark and purporting to offer services associated with Complainant’s Google Home product. Further, Respondent currently uses the domain name to resolve to an inactive website. Moreover, Respondent may have used the domain name to conduct a phishing scheme.

 

Respondent registered and is using the disputed domain name in bad faith. Respondent attempted to disrupt Complainant’s business and create confusion with Complainant’s mark for commercial gain by using the <googlehome.support> domain name to pass itself off as Complainant or Complainant’s affiliate and to address a competing website. Further, Respondent registered the <googlehome.support> domain name with actual knowledge of Complainant’s rights in the GOOGLE mark.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the GOOGLE HOME mark.

 

Complainant’s rights in GOOGLE HOME existed prior to Respondent’s registration of the at-issue domain name.

 

Respondent uses the domain name to pass itself off as Complainant so that it might offer and benefit from services appearing to be from Complainant, when they are not.

 

DISCUSSION

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.”).

 

Identical and/or Confusingly Similar

The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.

 

Complainant’s ownership of one or more national trademark registrations for the GOOGLE HOME mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).

 

The <googlehome.support> domain name incorporates Complainant’s entire GOOGLE HOME mark, less its space, suffixed with the top level domain name “.support.” The differences between the at-issue domain name and Complainant’s trademark are insufficient to distinguish the two for the purposes of the Policy. Therefore, the Panel finds that Respondent’s <googlehome.support> domain name is identical to the Complainant’s GOOGLE mark under Policy ¶4(a)(i). See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)).

 

Rights or Legitimate Interests

Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the domain name.

 

Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests.  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond and since as discussed below there is no evidence supporting a finding pursuant to Policy 4(c) that Respondent has rights or interests in the at-issue domain name, Complainant’s prima facie showing acts conclusively.

 

WHOIS information identifies “Sushant mustang” as the at-issue domain name’s registrant.  Moreover, the record before the Panel contains no evidence that suggests Respondent is otherwise commonly known by the <googlehome.support> domain name. The Panel thus concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); see also Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).

 

Further, Respondent used the at-issue domain name to pass itself off as Complainant to address a website displaying the GOOGLE HOME trademark and offering services that relate to Complainant’s GOOGLE HOME product. Respondent’s use of the trademark identical <googlehome.support> domain name in this manner is neither a Policy ¶ 4(c)(i) bona fide offering of goods or services, nor a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the at-issue domain name. See Glaxo Group Ltd. v. WWW Zban, FA 203164 (Forum Dec. 1, 2003) (finding that the respondent was not using the domain name within the parameters of Policy ¶ 4(c)(i) or (iii) because the respondent used the domain name to take advantage of the complainant's mark by diverting Internet users to a competing commercial site).

 

In light of the foregoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Respondent’s <googlehome.support> domain name was registered and used in bad faith. As discussed below without limitation, Policy ¶ 4(b) specific bad faith circumstances, as well as other bad faith circumstances, compel the Panel to conclude that Respondent acted in bad faith regarding the at-issue domain name pursuant to paragraph 4(a)(iii) of the Policy.

 

Respondent used its confusingly similar <googlehome.support> domain name to divert internet users seeking GOOGLE HOME related products and services to Respondent’s <googlehome.support> website where Respondent competes with Complainant. Such use of Respondent’s trademark-identical domain name disrupts Complainant’s business and improperly exploits the goodwill associated with Complainant’s GOOGLE HOME trademark. Using the domain name in this manner demonstrates Respondent’s bad faith registration and use of <googlehome.support> under both Policy ¶¶ 4(b)(iii) & (iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business.  The Panel finds this diversion is evidence of bad faith registration and use 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).”).

 

Finally, Respondent had actual knowledge of Complainant’s rights in the GOOGLE HOME trademark before registering the <googlehome.support> domain name.  Respondent’s prior knowledge is evident from the notoriety of Complainant’s GOOGLE HOME mark and Respondent’s use of the <googlehome.support> domain name as discussed above. Registering and using a confusingly similar domain name with knowledge of Complainant’s rights in such domain name indicates bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that the respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that the respondent "actual knowledge of Complainant's mark when registering the disputed domain name”).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <googlehome.support> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Paul M. DeCicco, Panelist

Dated:  September 16, 2018

 

 

 

 

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