Google LLC v. Alexander Na
Claim Number: FA1909001863583
Complainant is Google LLC (“Complainant”), represented by Brendan J Hughes of Cooley LLP, District of Columbia, USA. Respondent is Alexander Na (“Respondent”), Ukraine.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <googlebillingservice.com> (‘the Domain Name’), registered with Hosting Concepts B.V. d/b/a Openprovider..
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.
Complainant submitted a Complaint to the Forum electronically on September 23, 2019; the Forum received payment on September 23, 2019.
On October 1, 2019, Hosting Concepts B.V. d/b/a Openprovider confirmed by e-mail to the Forum that the <googlebillingservice.com> domain name is registered with Hosting Concepts B.V. d/b/a Openprovider and that Respondent is the current registrant of the name. Hosting Concepts B.V. d/b/a Openprovider has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Openprovider 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 4, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 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@googlebillingservice.com. Also on October 4, 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 October 28, 2019 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
The Complainant’s contentions can be summarized as follows:
The Complainant owns the well-known trademark GOOGLE registered, inter alia, in the USA for Internet related services with registrations going back to 1999. It owns google.com.
The Domain Name was registered in 2019 and does not resolve to an active web site.
The Domain Name is confusingly similar to the Complainant’s GOOGLE trade mark incorporating it in its entirety and adding only the generic terms ‘billing’ and ‘service’ and the gTLD .com which do not distinguish the Domain Name from the Complainant’s mark.
The Respondent is not commonly known by the Domain Name and has not been authorized by the Complainant to use the Complainant’s mark. The Respondent is not pointing the Domain Name to a web site so there is no bona fide offering of services or a noncommercial fair use. The Respondent does not have rights or a legitimate interest in the Domain Name.
Given the fame of the Complainant’s mark, any use would be illegitimate. The Domain Name has been registered and used in opportunistic bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant owns the well-known trademark GOOGLE registered, inter alia in the USA for Internet related services with registrations going back to 1999. It owns google.com.
The Domain Name registered in 2019 does not resolve to an active web site.
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”).
Identical or Confusingly Similar
The Domain Name consists of the Complainant’s GOOGLE mark (which is registered in, inter alia, the USA for Internet related services since 1999), the generic terms ‘billing’ and ‘service’ and the gTLD .com which do not distinguish the Domain Name from the Complainant’s mark.
Previous panels have found confusing similarity when a respondent merely adds generic terms to a sign confusingly similar to the 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 the 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
The Complainant has not authorized the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
There has been no use of the mark. See Hewlett-Packard Co. v. Shemesh, FA 434145 (Forum April 20, 2005) (Where the panel found inactive use is not a bona fide offering of goods or services pursuant to Policy 4(c)(i)).
As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Respondent has not answered this Complaint or explained why it should be allowed to register a domain name containing the Complainant’s mark which is well known for Internet services.
The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant seeks to profit from or exploit the trademark of another. Passive holding of a domain name containing a well-known mark can be bad faith registration and use. See Telstra Corporation Limited v Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000).
As such, the Panel holds that the 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.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <googlebillingservice.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: October 28, 2019
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