Google LLC v. Video GetLink / Nguyen Dinh Hop
Claim Number: FA1809001809789
Complainant is Google LLC (“Complainant”), represented by Jonathan S. Batchelor of Dickson Wright PLLC, Arizona, USA. Respondent is Video GetLink / Nguyen Dinh Hop (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <downloadyoutubehd.net> and <tapyoutube.com>, registered with NameCheap, Inc.; and <getlinkyoutube.com>, registered with P.A. Viet Nam Company Limited.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 28, 2018; the Forum received payment on September 28, 2018.
On October 1, 2018, NameCheap, Inc. confirmed by e-mail to the Forum that the <downloadyoutubehd.net> and <tapyoutube.com> domain name are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. On October 3, 2018, P.A. Viet Nam Company Limited confirmed by e-mail to the Forum that the <downloadyoutubehd.net> domain name is registered with P.A. Viet Nam Company Limited and that Respondent is the current registrant of the name. NameCheap, Inc. and P.A. Viet Nam Company Limited have verified that Respondent is bound by their respective registration agreements 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 October 8, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 29, 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@getlinkyoutube.com, postmaster@downloadyoutubehd.net, postmaster@tapyoutube.com. Also on October 8, 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. Respondent did however send an e-mail to the Forum, see below.
On November 2, 2018, 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.
The Panel notes that the Registration Agreement is written in English, thereby making the language of the proceedings in English. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Complainant requests that the domain names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant alleges that the entities which control the domain name at issue are effectively controlled by the same person and/or entity, which is operating under several aliases. 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, the disputed domain names are under common ownership or control by the same person or entity, Respondent: the Whois records for the disputed domain names show the same postal address, e-mail address, and phone number. Panels have rendered decisions against multiple respondents in a single proceeding based on the presence of common contact information in the Whois records, including common phone numbers. See Yahoo! Inc. v. Rajesh Singh / w2c Technologies / W2C Technologies, FA1594916 (Forum Feb. 9 2015) (finding domain names to be under common control in part due to the presence of common telephone numbers in the Whois records); Google Inc. v. Serghiy Vasilchenko / Serg Vasilchenko / ahnames, FA1516098 (Forum Oct. 15, 2013) (finding domain names to be under common control in part because the Whois records for the domain names listed identical phone numbers). Furthermore, the disputed domain names resolve to the same website. Panels have found domains to be under common control where the domain names resolve to the same online website. See, e.g., Eli Lilly and Company v. Thomas Michael et al., FA1638884 (Forum Dec. 10, 2015) (finding multiple domain names to be under common control in part because they “all resolve to the same on-line pharmacy where the web pages are similar, all offering pharmaceutical products of the same nature”). Consequently, the Panel finds that the disputed domain names are registered by the same domain name holder, referred to here as “Respondent”.
A. Complainant
Complainant states that it is a limited liability company located in Mountain View, California that offers various online services, including the video sharing services, YOUTUBE. Complainant has rights in the YOUTUBE mark through its trademark registrations in the United States in 2008. The mark and the service are famous.
Complainant alleges that the disputed domain names are confusingly similar to its YOUTUBE mark as they incorporates the mark and merely add a generic term (“get link,” “download,” “hd,” or “tap,”) and a “.com” or “.net” gTLD. 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 authorized or permitted to use Complainant’s YOUTUBE mark and is not commonly known by the disputed domain names. Additionally, Respondent is not using the disputed domain names in connection to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, the disputed domain names resolve to a website that prompts users to download software and that displays pay-per-click links for products and services not related to Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. Respondent disrupts Complainant’s business and attracts, for commercial gain, users to the disputed domain name where it offers unwanted software downloads, which violates Complainant’s Terms of Service. Additionally, Respondent profits from the resolving websites where it features pay-per-click hyperlinks. Finally, Respondent had actual and constructive knowledge of Complainant’s rights in the YOUTUBE mark prior to registering the disputed domain names. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. However, in his e-mail to the Forum, Respondent states, in pertinent part: “I no longer use all three of these domains. The sites pointing to these domains have also been deleted. Next step, what do I do to end this domain complaint?”
For the reasons set forth below, the Panel will not make any findings of fact.
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.
The Panel finds that Respondent’s e-mail constitutes consent to transfer the disputed domain names. Thus, in the present case, the parties have both asked for the domain name to be transferred to Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <getlinkyoutube.com>, <downloadyoutubehd.net>, and <tapyoutube.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 2, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page