Google LLC v. Adi / DNA Mediaq
Claim Number: FA2010001915533
Complainant is Google LLC (“Complainant”), represented by Brian J. Focarino of Cooley LLP, United States. Respondent is Adi / DNA Mediaq (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <stadiaanywhere.com>, registered with Google 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 1, 2020; the Forum received payment on October 1, 2020.
On October 1, 2020, Google LLC confirmed by e-mail to the Forum that the <stadiaanywhere.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 October 2, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 22, 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@stadiaanywhere.com. Also on October 2, 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. Respondent did however send an email to the Forum, see below.
On October 26, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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
Complainant states that it operates a famous worldwide Internet search service. On March 19, 2019, Complainant first announced its STADIA brand cloud gaming service. STADIA is capable of streaming video games up to 4K resolution at 60 frames per second with support for high-dynamic-range, to players via the company's numerous data centers across the globe, via a high-speed internet connection. It is accessible through Complainant’s CHROME brand web browser on personal computers and PIXEL smartphone devices, and is supported by various third party smartphones and tablets. In the months since its launch, the STADIA service has met with resounding success in the marketplace and has quickly increased Complainant’s share of the cloud gaming market. According to reports, Complainant’s STADIA service has been used by over 1 million users since its launch in November 2019. Complainant has rights in the STADIA mark based upon registration with multiple trademark agencies, including in the United Kingdom in 2019.
Complainant alleges that the disputed domain name is confusingly similar to its STADIA mark because it fully incorporates the mark and simply adds the generic term “anywhere” and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent does not have rights or legitimate interests in the disputed domain name. Respondent is not licensed or authorized to use Complainant’s STADIA mark and is not commonly known by the disputed domain name. Additionally, Respondent doesn’t use the disputed domain for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain to redirect users to a webpage that encourages users to purchase software not affiliated with Complainant
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent misleads consumers into believing an affiliation exists between Complainant and Respondent in order to offer software for purchase and collect personally identifying information. Additionally, Respondent has actual knowledge of Complainant’s rights in the STADIA mark.
B. Respondent
Respondent failed to submit a Response in this proceeding. It its email to the Forum, Respondent states, in pertinent part (emphasis added on the last line):
I want to say that when creating this service I wanted to allow gamers (like me) that really(!) want to use Google Stadia (and pay Google the full Google price) to be able to use Google's Stadia and encourage more gamers to use Google services and like any other VPN service, charge for the VPN part.
The email mentioned good/bad faith - Before creating StadiaAnywhere I looked at other websites and similar services that have Stadia in the domain or URL, some of them are major VPNs for examples:
ExpressVPN (the biggest) - https://www.expressvpn.com/vpn-service/google-stadia-vpn#what-is-google-stadia
StadiaVPN - https://stadiavpn.com/
StadiaSource - https://stadiasource.com/
And more (https://appstadia.com/ http://www.betstadia.com/ and many other domains that contain or offer to sell stadia domains in high price).
Using the Stadia name in the Domain in this case (like in https://stadiavpn.com/ case) was "needed" because the VPN service is unique to Stadia, but we removed the website offcourse after your demand.
You mentioned that we used the Stadia name to confuse people - I didn't mean to confuse anyone but to enable Stadia in unsupported places like any VPN and had descriptions only on the VPN service part - it was clear that this is a VPN (users still need to pay full price to Google).
The service was launched in August 31st , Overall 37 subscriptions which most of them are cancelling before reaching the VPN free trial end. The total money so far that was got was ~$100 dollars since service launched. - I though this information might be relevant because it did not even reach many people.
Regarding the domain transfer, we are unsure how to transfer it to Google, I'll be happy to do it (not going to use it from now). it is currently locked now.
For the reasons set forth below, the Panel will not make any findings of fact.
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.
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."
In the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <stadiaanywhere.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: October 27, 2020
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