Google LLC v. navin sharma
Claim Number: FA2005001894583
Complainant is Google LLC (“Complainant”), represented by Matthew J. Snider of Dickinson Wright PLLC, Michigan, United States. Respondent is navin sharma (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <getflutter.dev> (‘the Domain Name’), registered with GoDaddy.com, 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 May 1, 2020; the Forum received payment on May 1, 2020.
On May 4, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <getflutter.dev> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. 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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On May 4, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 26, 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@getflutter.dev. Also on May 4, 2020, 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 May 29, 2020 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:
In 2015, Google introduced an open source, cross platform software framework for developing user interfaces for mobile, web and desktop applications. Google’s website for its FLUTTER product and service is available at <flutter.dev>. As part of its offering, Google provides a library incorporating a broad range of pre-made software components, or widgets, for use within Google’s FLUTTER framework. The Complainant is the owner of the mark FLUTTER registered, inter alia, in the USA.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s FLUTTER mark adding only the generic term ‘”get” and the gTLD “.dev” which do not prevent said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The <getflutter.dev> domain name resolves to a commercial website that competes with Complainant by purporting to provide a library of pre-made software components, or widgets. In addition, the website resolving from the Domain Name prominently displays the GET FLUTTER mark, with an emphasis on FLUTTER, in a brand-like manner at the top of and throughout the page. The website resolving from the Domain Name provides a disclaimer, but the disclaimer appears only at the bottom of the webpage in small text, and is only viewable by Internet users after they have scrolled past Respondent’s pervasive and conspicuous brand-like uses of the FLUTTER Mark. Respondent benefits from Internet users who are mistakenly diverted to Respondent’s website under the false belief that they have reached a site operated or endorsed by Google – a false belief that is reinforced by Respondent’s prominent brand use of the FLUTTER Mark on Respondent’s website, thus implying that Respondent’s services are provided by, endorsed by or otherwise affiliated with Complainant. Such use of the Domain Name constitutes neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use. It is diverting Internet users for commercial gain in actual knowledge of the Complainant and its rights disrupting the Complainant’s business in opportunistic bad faith and is registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
In 2015, Google introduced an open source, cross platform software framework for developing user interfaces for mobile, web and desktop applications. Google’s website for its FLUTTER product and service is available at <flutter.dev>. As part of its offering, Google provides a library incorporating a broad range of pre-made software components, or widgets, for use within Google’s FLUTTER framework. The Complainant is the owner of the mark FLUTTER for these services registered, inter alia, in the USA.
The Domain Name registered in 2019 has been used for a competing software 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 FLUTTER mark (which is registered in USA for computer software related goods and services with first use recorded as 2015), the generic term “get” and the gTLD “.dev” 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 panel agrees that the addition of the generic term ‘get’ does not prevent confusing similarity between the Domain Name and the Complainant’s mark.
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 FLUTTER 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 authorised 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 web site attached to the Domain Name is a software site competing with that of the Complainant. It does not make it clear that there is no commercial connection with the Complainant. The Panel finds this use is confusing. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc v Benjamin FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to advertise services which competed with the Complainant's business did not constitute a bona fide use of goods and services.)
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
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site or goods and services on it likely to disrupt the business of the Complainant. See Asbury Auto Group Inc v Tex. Int'l Prop Assocs FA 958542 (Forum May 29, 2007) (finding that the respondent's use of the disputed domain name to advertise car dealerships that competed with the complainant's business would likely lead to confusion amongst Internet users as to the sponsorship or affiliation of those competing dealerships and was therefore evidence of bad faith and use).
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 para 4(b)(iv) and 4 (b)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <getflutter.dev> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 29, 2020
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