Google LLC v. sameer bawa / THE TECHNICAL BOY
Claim Number: FA1905001845510
Complainant is Google LLC (“Complainant”), represented by Fabricio Vayra of Perkins Coie LLP, District of Columbia, United States. Respondent is sameer bawa / THE TECHNICAL BOY (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <dropcamwifisetup.com>, registered with Google LLC.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 30, 2019; the Forum received payment on May 30, 2019.
On May 30, 2019, Google LLC confirmed by e-mail to the Forum that the <dropcamwifisetup.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 June 3, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 24, 2019 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@dropcamwifisetup.com. Also on June 3, 2019, 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 June 26, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 operates a subsidiary business under the name “Nest Labs,” which offers hardware, software, and related services geared towards delivering home energy, safety, and security solutions. Complainant has rights in the DROPCAM mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 3,974,100, registered June 7, 2011). See Compl. H. Complainant’s subsidiary assigned the mark to Complainant on November 13, 2018 and the USPTO recorded the assignment on December 4, 2018.
Respondent’s <dropcamwifisetup.com> domain name is confusingly similar as the domain name fully incorporates the DROPCAM mark adding the generic terms “wifi” and “setup” in addition to the “.com” generic top-level domain (gTLD).
Respondent has no rights or legitimate interests in the <dropcamwifisetup.com> as Respondent is not commonly known by the disputed domain name nor did Complainant authorize or license Respondent to use any of its marks. Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses the website to pass itself off as Complainant or its wholly owned subsidiary. Respondent uses the domain name to divert Internet users for its own commercial gain.
Respondent registered and used the disputed domain name in bad faith by attempting to pass itself off as Complainant or its wholly owned subsidiary. Respondent causes confusion among internet users by creating the likelihood of confusion that Respondent is somehow affiliated with Complainant. Lastly, Respondent had actual knowledge in Complainant’s rights in the DROPCAM mark due to the prominent use of Complainant’s NEST marks on the <dropcamwifisetup.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on April 3, 2018.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the dispute domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Panel finds that the disputed domain name, <dropcamwifisetup.com>, is confusingly similar to Complainant’s valid and subsisting trademark, DROPCAM. Complainant has adequately plead its rights and interests in and to this trademark. Respondent arrives at the disputed domain name by merely adding the generic words “wifi” and “setup” and appending the g TLD “.com.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel fids that the disputed domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent has no rights or legitimate interests in or tot the disputed domain name. Respondent has no right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Further, Respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent apparently uses the website to pass itself off as Complainant or its wholly owned subsidiary. Respondent uses the domain name to divert Internet users for its own commercial gain.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
Finally, the Panel finds that Respondent has engaged in bad faith use and registration of the dispute domain name. Respondent apparently registered and is using the disputed domain name in bad faith by attempting to pass itself off as Complainant or its wholly owned subsidiary to solicit personal and financial information. Use of a disputed domain name in attempt to pass oneself off as a complainant in furtherance of a phishing scheme to obtain personal information may here is evidence of bad faith per Policy ¶ 4(b)(iv). See Amazon Technologies, Inc. v. jaskima smith, FA 1750160 (Forum Oct. 26, 2017) (finding the respondent registered and used the disputed domain name in bad faith to pass off as the complainant in an attempt to gain personal information from users who mistakenly access the website). Here, Complainant provides screenshots from Respondent’s domain name that show the use Complainant’s mark being heavily used in addition to Respondent’s use of a chat feature that tries to obtain personal information. See Compl. Ex. I and J. Therefore, the Panel finds that Respondent engaged in bad faith by attempting to pass itself as Complainant per Policy ¶ 4(b)(iv).
The Panel further finds that the disputed domain name causes initial interest confusion with Complainant’s mark and creates the likelihood of confusion that Respondent is somehow affiliated with Complainant. Use of a domain name obviously connected to a mark thus creating a likelihood of confusion for commercial gain may be evidence of bad faith registration and use per Policy ¶ 4(b)(iv). See BBY Solutions, Inc. v. Grant Ritzwoller, FA 1703389 (Forum Dec. 21, 2016) (finding bad faith because the <bestbuyus.com> domain name was obviously connected with the complainant’s well-known BEST BUY mark, thus creating a likelihood of confusion strictly for commercial gain). Here, Complainant has provided screenshots that show Respondent’s domain name prominently featuring Complainant’s DROPCAM mark. See Compl. Ex. I. Therefore, the Panel finds that Respondent engaged in bad faith registration and use per Policy ¶ 4(b)(iv).
Lastly, the Panel finds that Respondent had actual knowledge of Complainant’s rights in the DROPCAM mark. Complainant argues that Respondent’s use of Complainant’s DROPCAM mark on the disputed domain name indicates that Respondent had actual knowledge of Complainant’s mark and rights. Complainant provides screenshots that show Respondent’s domain name prominently featuring Complainant’s DROPCAM mark. See Compl. Ex. I. Therefore, given the totality of the circumstances, the Panel finds that Respondent had actual knowledge of Complainant’s mark and rights at the time of registration.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be granted.
Accordingly, it is Ordered that the <dropcamwifisetup.com> domain name be transferred from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: June 27, 2019
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