DECISION

 

Google LLC v. Domain Administrator / Fundacion Privacy Services LTD

Claim Number: FA2007001904443

 

PARTIES

Complainant is Google LLC (“Complainant”), represented by Fabricio Vayra of Perkins Coie LLP, District of Columbia, United States.  Respondent is Domain Administrator / Fundacion Privacy Services LTD (“Respondent”), Panama.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <bblogspot.com>, registered with Media Elite Holdings Limited.

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on July 16, 2020; the Forum received payment on July 16, 2020.

 

On July 23, 2020, Media Elite Holdings Limited confirmed by e-mail to the Forum that the <bblogspot.com> domain name is registered with Media Elite Holdings Limited and that Respondent is the current registrant of the name. Media Elite Holdings Limited has verified that Respondent is bound by the Media Elite Holdings Limited 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 July 27, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 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@bblogspot.com.  Also on July 27, 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 August 20, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant, Google LLC, is a tech company that offers a wide range of Internet-related products and services. Complainant asserts rights in the BLOGSPOT mark through registration of the mark with multiple trademark agencies, including in Portuguese National Industrial Property Institute. (e.g., Reg. No. 477,367, registered January 9, 2012). See Amend. Compl. Annex 8. Respondent’s <bblogspot.com> domain name is confusingly similar to Complainant’s mark, as it fully incorporates the BLOGSPOT mark in its entirety and merely adds an extra “b” and the “.com” generic top-level domain (“gTLD”).

2.    Respondent lacks rights or legitimate interests in the <bblogspot.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent’s use of the BLOGSPOT mark. Additionally, Respondent fails to use the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the domain name to pass off as Complainant to divert Internet users to Respondent’s website to offer competing goods or services for its own financial gain.

3.    Respondent registered and uses the <bblogspot.com> domain name in bad faith. Respondent intentionally targeted the BLOGSPOT mark for their own financial gain.

 

B.   Respondent

1.    Respondent did not submit a response to this proceeding.

 

FINDINGS

1.    Respondent’s <bblogspot.com> domain name is confusingly similar to Complainant’s BLOGSPOT mark.

2.    Respondent does not have any rights or legitimate interests in the <bblogspot.com> domain name.

3.    Respondent registered or used the <bblogspot.com> domain name in bad faith.

 

DISCUSSION

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 and/or Confusingly Similar

Complainant asserts rights in the BLOGSPOT mark through its registration of the mark with multiple trademark agencies. Registration of a mark with multiple trademark agencies around the world is sufficient to demonstrate rights in the mark under Policy ¶ 4(a)(i). See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1625332 (Forum July 17, 2015) (finding, “Registration of a mark with a governmental authority (or, in this case, multiple governmental authorities) is sufficient to establish rights in the mark for purposes of Policy ¶ 4(a)(i)”). Complainant provides evidence of its registration in Portugal (e.g., Reg. No. 477,367, registered January 9, 2012). See Amend. Compl. Annex 8. Therefore, the Panel finds that Complainant has rights in the mark under Policy ¶ 4(a)(i).

 

Complainant argues that Respondent’s <bblogspot.com> domain name is confusingly similar to Complainant’s mark because it incorporates the BLOGSPOT mark in its entirety and merely adds an additional letter “b” along with the “.com” gTLD. The addition of individual letters and a gTLD does not save a domain name from a finding of confusing similarity. See Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) (“The domain name contains the mark in its entirety, with only the addition of the generic letters ‘sb’ and the digits ‘2018,’ plus the generic Top Level Domain (“gTLD”) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”). Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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”).

 

Complainant argues that Respondent does not have rights or legitimate interests in the <bblogspot.com> domain name, as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the BLOGSPOT mark. Where a response is lacking, relevant WHOIS information can be used to determine if a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by that name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 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 WHOIS information for the disputed domain name shows that the registrant’s name is “Domain Administrator / Fundacion Privacy Services LTD” and nothing in the record indicates that Respondent is licensed to use Complainant’s mark or is known by the disputed domain name. See Amend. Compl. Annex 4. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy  ¶ 4(c)(ii).

 

Additionally, Complainant claims Respondent fails to use the <bblogspot.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain name to pass off as Complainant to divert Internet users to Respondent’s website where it offers competing goods and services for financial gain. Passing off as a complainant for financial gain is neither 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). See Mortgage Research Center LLC v. Miranda, FA 993017 (Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for 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).”) Here, Complainant claims that Respondent’s website uses the BLOGSPOT mark in an attempt to get Internet users to download software for Respondent’s financial benefit. Complainant provides screenshots of websites resolving from the disputed domain name which prompt users to download software applications. See Amend. Compl. Annex 11. The Panel agrees that such use is not 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).

 

Registration and Use in Bad Faith

Complainant claims Respondent registered and uses the <bblogspot.com> domain name in bad faith because Respondent creates a likelihood of confusion as to the source or affiliation of the disputed domain name for Respondent’s financial benefit. Redirection of a complainant’s consumers for commercial gain is evidence of bad faith under Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”) Complainant argues that Respondent intentionally targeted the BLOGSPOT mark to create a likelihood of confusion in order to attract Internet users familiar with Complainant for their own financial gain. As previously noted, Complainant provides screenshots of websites resolving from the disputed domain name which prompt users to download software applications. See Amend. Compl. Annex 11. The Panel therefore agrees with Complainant and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <bblogspot.com> domain name be TRANSFERRED from Respondent to Complainant.

John J. Upchurch, Panelist

Dated:  September 3, 2020