Google LLC v. TANJU MENTEŞ
Claim Number: FA1912001875782
Complainant is Google LLC (“Complainant”), represented by Jonathan S. Batchelor of Dickson Wright PLLC, Arizona, United States. Respondent is TANJU MENTEŞ (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <googleyorumu.com>, registered with FBS Inc..
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 18, 2019; the Complaint was submitted in both Turkish and English; the Forum received payment on December 18, 2019.
On December 20, 2019, FBS Inc. confirmed by e-mail to the Forum that the <googleyorumu.com> domain name is registered with FBS Inc. and that Respondent is the current registrant of the name. FBS Inc. has verified that Respondent is bound by the FBS Inc. 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 20, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint in both Turkish and English, setting a deadline of January 9, 2020 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@googleyorumu.com. Also on December 20, 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 January 15, 2020, 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. 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.
Preliminary Issue: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Turkish, thereby making the language of the proceedings in Turkish. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Turkish language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant offers a wide range of Internet-related products and services computer hardware, including a business and location review platform, Internet search, web analytics, online map services, online advertising, email, cloud computing tools and services, a social networking platform, translation services and hardware devices. Complainant has rights in the GOOGLE mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,806,075, registered Jan. 20, 2004). Respondent’s <googleyorumu.com> domain name is confusingly similar to Complainant’s GOOGLE mark. Respondent incorporates the mark in its entirety and adds the generic term “yorumu,” which is the Turkish term for “review,” along with the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <googleyorumu.com> domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent in any way to use the GOOGLE mark. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to sell fabricated reviews to Complainant’s platforms.
Respondent registered and uses the <googleyorumu.com> domain name in bad faith. Specifically, Respondent uses the disputed domain name in an attempt to create a likelihood of confusion with Complainant in order to sell fabricated reviews on Complainant’s platforms for commercial gain. Lastly, Respondent had actual knowledge of Complainant’s rights in the GOOGLE mark prior to registration of its disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
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 nearly 200 websites at GOOGLE-formative domain names.
Respondent is Tanju Menteş (“Respondent”), of Istanbul, Turkey. Respondent’s registrar’s address is not specifically indicated. The Panel notes that the <googleyorumu.com> domain name was registered on or about September 14, 2017.
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”).
Complainant claims to have rights in the GOOGLE mark through its registration with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark per 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.”). Here, Complainant has provided the Panel with a copy of its USPTO registration for the GOOGLE mark (e.g., Reg. No. 2,806,075, registered Jan. 20, 2004). The Panel here finds that Complainant has adequately shown rights in the GOOGLE mark per Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <googleyorumu.com> domain name is confusingly similar to Complainant’s GOOGLE mark. Registration of a domain name that includes a mark in its entirety and adds a generic or descriptive term along with a gTLD does not distinguish the domain name from the mark per 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). Here, Complainant argues that Respondent incorporates the mark in its entirety and adds the generic term “yorumu,” which is the Turkish term for “review,” along with the “.com” gTLD. The Panel here finds that Respondent’s disputed domain name is confusingly similar to Complainant’s GOOGLE mark per 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 argues Respondent lacks rights or legitimate interest in the <googleyorumu.com> domain name as Respondent is not commonly known by the disputed domain name nor has Respondent been given a license or consent to use the GOOGLE mark or register domain names using Complainant’s mark. Where a response is lacking, 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)”). The WHOIS information for the disputed domain name lists the registrant as “Tanju Menteş” and Respondent provides no evidence to indicate that Respondent was authorized to use the GOOGLE mark or was commonly known by the disputed domain name. The Panel here finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant further argues that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to sell fabricated reviews to Complainant’s platforms. Use of a disputed domain name in connection with a service that sells phony reviews is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Amazon Technologies, Inc. v. JEREMY S. MOORE, FA1666264 (Forum April 25, 2016) (no rights or legitimate interests where respondent used the <buyamazonreviews.com> domain name in connection with a service for selling to retailers “fraudulent positive reviews on their products in an attempt to promote their sales in violation of the Amazon user agreement.”). Here, Complainant has provided screenshots of Respondent <googleyorumu.com> domain name resolving webpage that shows ads and messages for boosting and providing fraudulent reviews. The Panel here finds that Respondent has failed 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 that Respondent registered and used the <googleyorumu.com> domain name in bad faith in an attempt to create a likelihood of confusion with Complainant. Registration of a disputed domain name to create a likelihood of confusion with a complainant may be evidence of bad faith 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 provided a screenshot of Respondent’s disputed domain name that displays Complainant’s GOOGLE mark and logo in an attempt to confuse Internet users. The Panel here finds that Respondent registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iv).
Complainant also argues that Respondent uses the <googleyorumu.com> domain name to sell fabricated reviews which is a violation of Complainant’s terms of use. Violation of a complainant’s terms of use may be evidence of faith per Policy ¶ 4(a)(iii). See Amazon Technologies, Inc. v. Richard McCarthy / WorkingWebsites / Ricardo McCartney, FA1838865 (Forum May 18, 2019) (finding bad faith use and registration where respondent used the <kindlebookpromotions.com> and <kindlebookreview.net> domain names in connection with a service that enabled authors to pay for positive reviews and artificially inflate their sales rankings). Here, Complainant provides the Panel with screenshots of Respondent <googleyorumu.com> domain name’s resolving webpage that show ads and messages for boosting and providing fraudulent reviews. Furthermore, Complainant has provided the Panel with a copy of its terms of use which it asserts Respondent has violated. The Panel here finds that Respondent has registered and used the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Lastly, Complainant argues that Respondent had actual knowledge of Complainant’s rights in its GOOGLE mark prior to registration of its <googleyorumu.com> domain name. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, actual knowledge of Complainant’s rights in the mark prior to registering the disputed domain name 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.”). Use of a disputed domain that includes a famous and well-known mark may be evidence of actual knowledge of the mark per Policy ¶ 4(a)(iii). See Coachella Music Festival, LLC v. ALEXANDER DE ALMEIDA LOPES, FA 1705267 (Forum Jan. 9, 2017) (finding the respondent had actual knowledge of the complainant’s COACHELLA mark when it registered and used the <coachellastuff.com> domain name—and thus did so in bad faith—because the complainant presented adequate evidence that its mark was well-known and famous).Here, Complainant argues that given the extensive use, media coverage and fame of Complainant’s marks and Respondent’s offer to sell fabricated reviews using Complainant’s platform in violation of Complainant’s terms of use of its platform, there is no question that Respondent registered the disputed domain name with actual knowledge of Complainant’s mark. The Panel here finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to registration of the disputed domain name which constitutes bad faith registration and use 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 <googleyorumu.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: January 29, 2020
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