Google LLC v. Don Cottam / 323Link
Claim Number: FA2005001897483
Complainant is Google LLC (“Complainant”), represented by Brian J. Focarino of Cooley LLP, District of Columbia, USA. Respondent is Don Cottam / 323Link (“Respondent”), Tennessee, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <googlemeet.us>, 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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 22, 2020; the Forum received payment on May 22, 2020.
On May 26, 2020, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <googlemeet.us> 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 the U.S. Department of Commerce’s usTLD Dispute Resolution Policy (the “Policy”).
On May 28, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 17, 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@googlemeet.us. Also on May 28, 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 June 22, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 usTLD 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 usTLD Policy, usTLD 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
1. Respondent’s <googlemeet.us> domain name is confusingly similar to Complainant’s GOOGLE mark.
2. Respondent does not have any rights or legitimate interests in the <googlemeet.us> domain name.
3. Respondent registered and uses the <googlemeet.us> domain name in bad faith.
B. Respondent did not file a Response.
Complainant is one of the most highly recognized and widely used Internet search services in the world. Complainant holds registrations for the GOOGLE mark with multiple trademark offices around the world, including the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,806,075, registered January 20, 2004).
Respondent registered the <googlemeet.us> domain name on November 20, 2019, and uses it to divert Internet users to Respondent's webpage, which advertises competing services.
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”).
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
The Panel finds that Complainant has established rights in the GOOGLE mark for the purposes of Policy ¶ 4(a)(i) through its registration of the mark with multiple trademark offices around the world, including the USPTO. See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).
Respondent’s <googlemeet.us> domain name fully incorporates Complainant's GOOGLE mark and adds the generic term "meet" and the ".us" ccTLD. The addition of generic or descriptive terms and a gTLD fails to sufficiently distinguish a domain name from a mark 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). Accordingly, the Panel finds that Respondent’s <googlemeet.us> domain name is confusingly similar to Complainant’s GOOGLE mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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”).
Complainant argues that Respondent lacks rights and legitimate interests in the <googlemeet.us> domain name because Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. The WHOIS information for the disputed domain name lists the registrant as “Dan Cottam/323Link.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(iii). 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); see also 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)”).
Complainant contends that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use and, instead, uses the domain name to divert users to Respondent's webpage which advertises services in competition with Complainant. The use of a domain name to advertise good or services that compete with a complainant's goods or services is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(ii) or (iv). See Am. Int’l Group, Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (Panelist Tyrus R. Atkinson, Jr., dissenting) (finding that the respondent’s use of a confusingly similar domain name to advertise real estate services which competed with the complainant’s business did not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). Complainant provides a screenshot of the webpage at <googlemeet.us>, which advertises services in competition with Complainant. The Panel therefore finds that Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶¶ 4(c)(ii) or (iv).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <googlemeet.us> domain name in bad faith because it contains Complainant's well-known mark and it could not be used for any reason other than to trade on Complainant’s goodwill and attract users for commercial gain. A domain name so obviously connected to a mark to create a likelihood of confusion for commercial gain can show bad faith registration and use under 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). The Panel agrees that the <googlemeet.us> domain name is likely to cause confusion for Respondent’s commercial gain, and this constitutes bad faith under Policy ¶ 4(b)(iv).
Complainant contends that, given the fame and unique qualities of the GOOGLE mark, Respondent must have been aware of Complainant's rights in the GOOGLE mark when registering the <googlemeet.us> domain name. The Panel agrees and finds that Respondent had actual knowledge of the GOOGLE mark when it registered the disputed domain name, in bad faith under 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).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <googlemeet.us> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: June 22, 2020
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