DECISION

 

Google LLC v. Tran Ngoc Phuong

Claim Number: FA1810001810000

 

PARTIES

Complainant is Google LLC (“Complainant”), represented by Matthew J. Snider of Dickinson Wright PLLC, Michigan, USA.  Respondent is Tran Ngoc Phuong (“Respondent”), Vietnam.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <googleadservices.net> (‘the Domain Name’), registered with GoDaddy.com, LLC.

 

PANEL

The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.

 

Dawn Osborne as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on October 1, 2018; the Forum received payment on October 1, 2018.

 

On October 2, 2018, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <googleadservices.net> 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 October 3, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 23, 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@googleadservices.net.  Also on October 3, 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 October 26, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:

 

Complainant owns the well known trade mark GOOGLE registered, inter alia in Vietnam and the USA for Internet related services with registrations going back to 1998 and first use recorded as 2000. It owns google.com.

 

The Domain Name was registered August 7, 2018 and has been used for competing Internet related services.

 

The Domain Name is confusingly similar to Complainant’s GOOGLE trade mark incorporating it in its entirety and adding only the generic term ‘ad’ meaning advertisement, the generic word ‘services’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.

 

Respondent is not commonly known by the Domain Name and has not been authorised by Complainant to use Complainant’s mark. Respondent is using the Domain Name for a competing Internet advertising service or for phishing purposes neither of which is a bona fide offering of services or a non commercial fair use. Respondent does not have rights or a legitimate interest in the Domain Name.

 

Respondent is using the Domain Name to confuse Internet users for commercial gain by offering competing Internet services or for phishing purposes. The Domain Name has been registered and used in bad faith.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the well known trade mark GOOGLE registered, inter alia in Vietnam and the USA for Internet related services with registrations going back to 1998 and first use recorded as 2000. It owns google.com.

 

The Domain Name registered in 2018 has been used for competing Internet related services.

 

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 or Confusingly Similar

The Domain Name consists of Complainant’s GOOGLE mark (which is registered in USA and Vietnam for Internet related services with first use recorded as 2000), the generic term ‘ad’, the generic word ‘services’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.

 

Previous panels have found confusing similarity when a respondent merely adds generic terms to a sign confusingly similar to Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common descriptive or generic terms create new or different marks).

 

The gTLD .com does not serve to distinguish a Domain Name from a Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).

 

Accordingly, the Panel holds that the Domain Name is confusingly similar to Complainant’s GOOGLE registered mark.

 

As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.

 

Rights or Legitimate Interests

Complainant has not authorised the use of its mark. There is no evidence or reason to suggest Respondent is commonly known by the Domain Name.

 

The web site attached to the Domain Name is a Internet search services site competing with that of Complainant. It does not make it clear that there is no commercial connection with Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc v Benjamin. FA 944242 (Forum May 11, 2007) (finding that the respondent's use of a confusingly similar domain name to advertise services which competed with the complainant's business did not constitute a bona fide use of goods and services).

 

As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.

 

Registration and Use in Bad Faith

In the opinion of the panelist the use made of the Domain Name in relation to Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by Complainant. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of Complainant. See Asbury Auto Group Inc v Tex. Int'l Prop Assocs, FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).

 

As such, the Panelist believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iv) and 4(b)(iii) and there is no reason to consider further allegations of bad faith.

 

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 <googleadservices.net> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Dawn Osborne, Panelist

Dated:  October 29, 2018

 

 

 

 

Click Here to return to the main Domain Decisions Page.

Click Here to return to our Home Page