Google LLC v. Coherent Perspective
Claim Number: FA1912001873631
Complainant is Google LLC (“Complainant”), represented by Matthew J. Snider of Dickinson Wright PLLC, Michigan. Respondent is Coherent Perspective (“Respondent”), Portugal.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <googlebewertungen.com>, registered with Network Solutions, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 3, 2019; the Forum received payment on December 3, 2019.
On December 4, 2019, Network Solutions, LLC confirmed by e-mail to the Forum that the <googlebewertungen.com> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 December 9, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 30, 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@googlebewertungen.com. Also, on December 9, 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.
A timely Response was received and determined to be complete on December 24, 2019.
On December 30, 2019 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is one of the most highly recognized technology companies in the world. Complainant has rights in the GOOGLE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,884,502, registered Sept. 14, 2004) . Respondent’s <googlebewertungen.com> domain name is identical or confusingly similar to Complainant’s mark as it fully incorporates Complainant’s GOOGLE mark, merely adding the “.com” generic top-level domain (“gTLD”) and the non-distinctive term “bewertungen,” which translates from German to “reviews” in English.
Respondent lacks rights or legitimate interests in the <googlebewertungen.com> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to register or use the mark. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to sell fraudulent reviews for the purpose of manipulating a business’s rating and online profile.
Respondent registered and uses the <googlebewertungen.com> domain name in bad faith. Respondent’s use of the disputed domain name to sell fraudulent reviews disrupts Complainant’s business and undermines Complainant’s offerings. Respondent uses the confusingly similar domain name to attract Internet users to Respondent’s commercial website to sell fraudulent reviews. Respondent had actual or constructive knowledge of Complainant’s rights in the GOOGLE mark at the time of registration of the disputed domain name. Respondent’s use of the disputed domain name violates Complainant’s policies, also indicating bad faith registration and use.
B. Respondent
Respondent submitted a response on December 24, 2019 that simply sought a single member panel and acknowledged the Complainant’s request for transfer of the <googlebewertungen.com> domain name. Respondent raised no substantive contentions in the response.
Complainant is Google LLC (“Complainant”) of Mountain View, CA, USA. Complainant was established under the GOOGLE name in 1997 and since that time has continuously offered a broad array of internet related technological products and services under its GOOGLE mark. Complainant is the owner of numerous domestic and international registrations for its GOOGLE mark and variations thereof constituting the family of GOOGLE marks. Complainant’s primary website is located at <google.com> and Complainant owns and operates approximately 200 websites at GOOGLE-formative domain names.
Respondent is Coherent Perspective (“Respondent”), of Budens, Portugal. Respondent’s registrar’s address is listed as Jacksonville, FL, USA. The Panel notes that Respondent registered the <googlebewertungen.com> domain name on or about October 27, 2016.
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.
Complainant asserts rights in the GOOGLE mark through its registration of the mark with the USPTO. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum Aug. 4, 2017) (“Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.”). Complainant provides a listing of Complainant’s mark and copies of Complainant’s trademark registrations with the USPTO (e.g. Reg. No. 2,884,502, registered Sept. 14, 2004). The Panel here finds that Complainant has established rights in the GOOGLE mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <googlebewertungen.com> domain name is identical or confusingly similar to Complainant’s mark as it fully incorporates Complainant’s GOOGLE mark, merely adding the “.com” gTLD and the non-distinctive term “bewertungen,” which translates from German to “reviews” in English. Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). The Panel here finds that the <googlebewertungen.com> domain name is confusingly similar to the GOOGLE mark under Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant contends Respondent lacks rights or legitimate interests in the <googlebewertungen.com> domain name as Respondent is not commonly known by the disputed domain name and Complainant has not authorized Respondent to register or use the mark. WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). Here, the WHOIS information for the disputed domain name lists the registrant as “Coherent Perspective,” and Respondent has provided no evidence to suggest that Respondent was authorized to use the GOOGLE mark. The Panel here finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant further argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use because Respondent uses the disputed domain name to sell fraudulent reviews for the purpose of manipulating a business’s rating and online profile. Use of a domain name in furtherance of fraud or the illegal unauthorized use of a complainant’s systems is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Goodwin Procter LLP v. GAYLE FANDETTI, FA 1738231 (Forum Aug. 8, 2017) (“[T]he Domain Name has been used in an attempted fraud. As such it cannot have been registered for a legitimate purpose.”); see also Airbnb, Inc. v. Nima Rahnemoon, FA 1737766 (Forum July 25, 2017) (“It is clear from the evidence that Respondent has used the site attached to the Domain Name to promote illegal unauthorized use of Complainant’s systems… As such the Panel finds that Respondent does not have rights or a legitimate interest in the Domain Name.”). Complainant provides screenshots of the resolving webpage with English translations purportedly offering to provide fraudulent reviews on Complainant’s platform. The Panel here finds that Respondent does not use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues Respondent registered and uses the <googlebewertungen.com> domain name in bad faith as Respondent’s use of the disputed domain name to sell fraudulent reviews disrupts Complainant’s business and undermines Complainant’s offerings. The use of a domain name to offer competing goods or services can be disruptive of a complainant’s business and thus indicate bad faith registration and use per Policy ¶ 4(b)(iii). See LoanDepot.com, LLC v. Kaolee (Kay) Vang-Thao, FA1762308 (Forum January 9, 2018) (finding that the respondent’s use of the disputed domain name to offer competing loan services disrupts Complainant’s business under Policy ¶ 4(b)(iii)); see also H-D U.S.A., LLC v. Auliya ulfiyanto, FA 1682051 (Forum Aug. 17, 2016) (adopting a broad interpretation of “compete and disrupt” in Policy ¶ 4(b)(iii), and finding bad faith where the respondent was “operating a website whose activities are in opposition to Complainant”). The Panel again notes that Complainant provides screenshots of the resolving webpage with English translations purportedly offering to provide fraudulent reviews on Complainant’s platform. The Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii).
Complainant contends Respondent registered and uses the <googlebewertungen.com> domain name in bad faith because Respondent uses the confusingly similar domain name to attract Internet users to Respondent’s commercial website to sell fraudulent reviews. Use of a confusingly similar domain name to divert Internet users to a complainant’s website for commercial gain can indicate bad faith registration and use per Policy ¶ 4(b)(iv). See Microsoft Corporation v. Story Remix / Inofficial, FA 1734934 (Forum July 10, 2017) (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). Complainant argues Respondent attracts users to Respondent’s website to sell fraudulent reviews on Complainant’s site and provides evidence of Respondent’s use utilizing Complainant’s mark. The Panel finds Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant asserts that Respondent had actual or constructive knowledge of Complainant’s rights in the GOOGLE mark at the time of registration of the disputed domain name, which indicates bad faith registration. Although panels have generally not regarded constructive notice as sufficient for a finding of bad faith, actual knowledge of Complainant’s mark prior to registering is adequate to find bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). The fame of a mark and a respondent’s reference to a mark on the resolving webpage can indicate actual knowledge of a complainant’s trademark rights. See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). The Panel again notes that Complainant provides screenshots of the resolving webpage of the disputed domain name which references Complainant’s GOOGLE mark and company. The Panel finds that Respondent registered the disputed domain name with actual knowledge of Complainant’s trademark rights, evidencing bad faith per Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <googlebewertungen.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 13, 2020
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