Google LLC v. Eunice Hsieh / INAYOSHI DIGITAL MARKETING CO.,LTD.
Claim Number: FA1910001869451
Complainant is Google LLC (“Complainant”), represented by Matthew J. Snider of Dickinson Wright PLLC, Michigan, USA. Respondent is Eunice Hsieh / INAYOSHI DIGITAL MARKETING CO.,LTD. (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <gsuitepromocode.info> (‘the Domain Name’), registered with Google LLC.
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 October 31, 2019; the Forum received payment on October 31, 2019.
On October 31, 2019, Google LLC confirmed by e-mail to the Forum that the <gsuitepromocode.info> 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 November 1, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 21, 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@gsuitepromocode.info. Also on November 1, 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 November 25, 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 is the owner of the trademark G Suite registered, inter alia, in the USA for computer related services with first use recorded as 2016.
The Domain Name registered in 2018 is confusingly similar to the Domain Name adding only the generic term ‘promo code’ and the gTLD .info which do not prevent such confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorized by the Complainant.
The Domain Name has been used to purport to offer discount codes for the Complainant’s computer services in exchange for e mail addresses either for phishing purposes or diverting and misleading consumers for commercial gain using some of the Complainant’s logos and linking to official sites of the Complainant which shows the Respondent was aware of the Complainant and its rights. This is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in opportunistic bad faith intended to disrupt the Complainant’s business and to confuse Internet users for commercial gain taking advantage of the Complainant’s referral system in breach of its terms which do not allow registration of Domain Names containing the Complainant’s trademarks. The Complainant has given a false address as contact details for the WhoIs which is also indicative of bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trademark G Suite registered inter alia in the USA for computer related services with first use recorded as 2016.
The Domain Name registered in 2018 has been used for a web site purporting to offer discount codes for e-mail address information using the Complainant’s logos and linking to official sites of the Complainant. The Respondent has given false Who Is information.
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”).
As discussed, Respondent is using false information in the Whois record. The use of false Whois information obscures the registrant’s true identity and constitutes further evidence of Respondent’s bad faith. See Amazon Technologies, Inc. v. Zhang Biao Cao / Cao Zhang Biao / Zhang Biao / Cao Zhangbiao / Wang Li Hong / Li Hui, FA1758917 (Forum Dec. 20, 2017) (Respondent’s . . . use of . . . false WHOIS information to obscure his true identity when registering the Disputed Domain Names, is further evidence of Respondent’s bad faith.”); Facebook, Inc. v. Tstacy Muniru, FA1755333 (Forum Nov. 18, 2017) (“The presence of false WHOIS information can lead to a finding of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Identical and/or Confusingly Similar
The Domain Name in this Complaint combines the Complainant’s G SUITE word mark (registered, inter alia, in the USA for computer related services with first use recorded as 2016) the generic term ‘promo code’ and the gTLD .info.
The addition of the generic term ‘promo code’ to the Complainant’s mark does not prevent confusing similarity between the Domain Name and the Complainant’s mark. See Abbott Laboratories v. Miles White, FA 1646590 (Forum Dec. 10, 2015) (holding that the addition of generic terms do not adequately distinguish a disputed domain name from complainant’s mark under Policy 4(a)(i).).
The gTLD .info does not serve to distinguish the Domain Name from the 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 finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
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).
The Domain Name has been used for commercial purposes which cannot be legitimate noncommercial fair use.
The Domain Name has been used in an apparent phishing scheme using the Complainant’s logos. This is deceptive and confusing and amounts to passing off. As such, it cannot amount to the bona fide offering of goods and services. See DaVita Inc. v Cynthia Rochelo FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use’).
Use of a disputed domain name to divert internet users away from a complainant’s legitimate website is not a bona fide offering of goods or services or noncommercial or fair use per Policy 4(c)(i) or (iii). See Summit Group, LLC v. LSO, Ltd., FA 758981 (Forum Sept. 14, 2006) (finding that the respondent’s use of the complainant’s LIFESTYLE LOUNGE mark to redirect Internet users to respondent’s own website for commercial gain does not constitute either 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)).
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
Phishing schemes are bad faith registration and use. See Klabzuba Oil & Gas, Inc. v. LAKHPAT SINGH BHANDARI, FA 1506001625750 (Forum July 17, 2015).
The use of the Complainant’s logos on the web site attached to the Respondent’s web site shows that the Respondent was aware of the Complainant and its rights. Indeed, the Respondent appears to be trying to take advantage of rewards for referrals to the Complainant i.e. diverting customers for commercial gain while misleading customers with use of the Domain Name and the Complainant’s logos that that the Respondent’s site is connected with the Complainant.
Respondent is also using false information in the Whois record. The use of false Whois information obscures the registrant’s true identity and constitutes further evidence of Respondent’s bad faith. Facebook, Inc. v. Tstacy Muniru, FA1755333 (Forum Nov. 18, 2017) (“The presence of false WHOIS information can lead to a finding of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
As such, the Panelist believes 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 under 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <gsuitepromocode.info> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: November 25, 2019
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