Google LLC v. Manoj Gupta / Shrish Chandra Yadav
Claim Number: FA1908001858276
Complainant is Google LLC (“Complainant”), represented by Brendan J Hughes of Cooley LLP, Washington DC, USA. Respondent is Manoj Gupta / Shrish Chandra Yadav (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <gmailcustomerservicenumber.us> and <gmailcustomerservice.us>, registered with GoDaddy.com, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 20, 2019; the Forum received payment on August 20, 2019.
On August 21, 2019, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <gmailcustomerservicenumber.us> and <gmailcustomerservice.us> domain names are registered with GoDaddy.com, LLC and that Respondent is the current registrant of the names. 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On August 27, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 16, 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@gmailcustomerservicenumber.us, postmaster@gmailcustomerservice.us. Also on August 27, 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 September 17, 2019, 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 usTLD Dispute Resolution Policy ("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 usTLD Policy, usTLD 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged that the entities which control the domain names 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 support of its contention, Complainant’s shows that the websites addressed by the at-issue domain names list identical contact information, that the domain names expire on the same date, and that they were registered on the same month and day in consecutive years. Both registrants are, according to Complainant, residing in the Uttar Pradesh state of Northern India. Complainant’s unopposed evidence tends to show that the nominal registrants of the at-issue domain names are actually the same person or entity. Therefore, the Panel will treat the domain names’ registrants as a single entity for the purposes of this proceeding and will they be collectively referred to as Respondent herein. See The Valspar Corp. v. Zhou Zhiliang /zhouzhiliang / Zhiliang Zhou / Eric Chow / Visspa Ltd., FA1008001339342 (Forum Sep. 28, 2010) (“The Panel concludes that the disputed domain names are controlled by the same entity based on the similar content of the disputed domain names, the similarity of the sites they resolve to, and the similarities in the WHOIS information.”); see also, U.S. Auto Parts Network, Inc. v. Elias Skander / Jean Lucas / Domcharme Group et al., FA1469349 (Forum Dec. 28, 2012 (“In the absence of any response, Panel finds that Complainant has presented sufficient evidence to allow a reasonable inference to be made that the disputed domain names are controlled by the same person or entity.”)
A. Complainant
Complainant contends as follows:
Complainant is a Delaware limited liability company that uses the GMAIL mark in connection with email and electronic messaging services.
Complainant has rights in the GMAIL mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”)
Respondent’s <gmailcustomerservicenumber.us> and <gmailcustomerservice.us> domain names are confusingly similar to Complainant’s GMAIL mark as they merely incorporate the mark in its entirety, along with the descriptive terms “customer service number” or “customer service,” and a “.us” country code top-level domain (“ccTLD”).
Respondent has no rights or legitimate interests in the <gmailcustomerservicenumber.us> and <gmailcustomerservice.us> domain names. Respondent is not authorized or licensed to use Complainant’s GMAIL mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the at-issue domain names to pass itself off as Complainant to offer technical support services that directly compete with Complainant, and to phish for private information.
Respondent registered and uses the <gmailcustomerservicenumber.us> and <gmailcustomerservice.us> domain names in bad faith. Respondent’s ownership of multiple domain names that incorporate the GMAIL mark demonstrates bad faith. Respondent also attempts to attract, for commercial gain, users to the at-issue domain names where it offers competing technical support services. Furthermore, Respondent attempts to use the domain name as part of a phishing scheme. Finally, Respondent had actual knowledge of Complainant’s rights in the GMAIL mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the GMAIL mark through its registration of such mark with the USPTO.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in its relevant trademark.
Respondent uses the at-issue domain name to pass itself off as Complainant to putatively provide technical support services that compete with Complainant and to run a phishing scheme aimed at obtaining the personal information of unsuspecting internet users.
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.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 at-issue domain names are each confusingly similar to a trademark in which Complainant has rights.
Complainant’s ownership of USPTO trademark registrations for the GMAIL trademark demonstrates its rights in such mark for the purposes of Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) (“Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.”); see also, Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent forms the at-issue domain names by adding the terms “customer service” or “customer service number” to Complainant’s GMAIL trademark and appending the top-level domain name “.us” to the resulting string. The ensuing differences between Complainant’s trademark and each of the at-issue domain names are insufficient to distinguish either domain names from Complainant’s trademark for the purposes of the Policy. Therefore, the Panel finds that the <gmailcustomerservicenumber.us> and <gmailcustomerservice.us> domain name are each confusingly similar to Complainant’s GMAIL mark. See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”); see also Allied Bldg. Prods. Corp. v. Henkel, FA 827652 (Forum Dec. 11, 2006) (holding that “it is well established that the top-level domain, here “.us,” is insignificant with regard to UDRP analysis” when determining confusing similarity).
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, absent evidence of Policy ¶4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain names. 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 either domain names.
WHOIS information for the at-issue domain names lists Manoj Gupta and Shrish Chandra Yadav as the domain names’ respective registrants and there is nothing in the record that otherwise suggests Respondent is commonly known by either <gmailcustomerservicenumber.us> or <gmailcustomerservice.us>. Therefore, the Panel finds that Respondent is not commonly known by either at-issue domain name pursuant to Policy ¶ 4(c)(ii). See Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
Respondent’s <gmailcustomerservicenumber.us> and <gmailcustomerservice.us> domain names are used so that Respondent may pass itself off as Complainant and offer technical services, including password recovery, on websites addressed by the at-issue domain names. The websites feature the use of Complainant’s trademarks and logos which include not only GMAIL but also Complainant’s famous GOOGLE trademark. It is apparent to Complainant and to this Panel that Respondent is engaged in a phishing scheme aimed at obtaining the personal information of unsuspecting internet users who may believe they are dealing with Complainant when they are not. Using the domain names in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”); see also, Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of each of the at-issue domain names.
Both of the at-issue domain names were registered and used in bad faith. As discussed below without limitation, Policy ¶ 4(b) specific bad faith circumstances, as well as other circumstance, are present which compel the Panel to conclude that Respondent acted in bad faith in registering and using each of the domain names pursuant to paragraph 4(a)(iii) of the Policy.
First as mentioned above regarding rights and legitimate interests, Respondent displays Complainant’s GMAIL trademark and other intellectual property on webpages addressed by the confusingly similar domain names. The display is designed to lead internet users to believe that such webpages are sponsored by or affiliated with Complainant, when they are not. Respondent is likely intent on profiting through such use of the domain names. Respondent’s use of the domain names in this manner demonstrates Respondent’s bad faith pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting). Moreover, to the extent that Respondent may actually be conducting some kind of support business at the addressed webpages such business is in competition with Complainant’s own support services. Using the trademark laden domain names to compete with Complainant also demonstrates Respondent’s bad faith under Policy ¶ 4(b)(iv). See Yahoo! Inc. v. Mohit Arora / E-squad Tech. FA1311001531666 (Forum Dec. 31, 2013) (“The Panel notes that Respondent’s <yahootechnicalhelp.com> domain name resolves to a webpage that providing technical services under ‘Yahoo Technical Help’ … a respondent’s use of a disputed domain name to offer competing services for its own commercial gain evidences bad faith under Policy ¶ 4(b)(iv)).
Next, the webpages addressed by the at-issue domain names reveals Respondent’s plan to pass itself off as Complainant to fraudulently obtain the personal information, including passwords, of website visitors. Respondent’s phishing scheme, which is disruptive to Complainant’s business, demonstrates bad faith registration and use of the at-issue domain names under Policy ¶ 4(b)(iii). See Wells Fargo & Co. v. Maniac State, FA 608239 (Forum Jan. 19, 2006) (finding bad faith registration and use where the respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of the complainant’s customers).
Finally, Respondent registered the <gmailcustomerservicenumber.us> and <gmailcustomerservice.us> domain names knowing that Complainant had trademark rights in the GMAIL mark. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark and from Respondent’s multiple registrations of domain names containing Complainant’s GMAIL mark. Indeed, it is inconceivable that Respondent was unaware of Complainant’s renowned trademark. Given the forgoing, it is clear that Respondent intentionally registered the at-issue domain names precisely to improperly exploit their trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark further indicates that Respondent registered and used the <gmailcustomerservicenumber.us> and <gmailcustomerservice.us> domain names in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gmailcustomerservicenumber.us> and <gmailcustomerservice.us> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: September 17, 2019
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