Google LLC v. majiaai
Claim Number: FA2101001929459
Complainant is Google LLC ("Complainant"), represented by Fabricio Vayra of Perkins Coie LLP, District of Columbia, USA. Respondent is majiaai ("Respondent"), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <xn--google-0wa.com>, registered with Dynadot, 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 23, 2021; the Forum received payment on January 23, 2021.
On January 25, 2021, Dynadot, LLC confirmed by email to the Forum that the <xn--google-0wa.com> domain name is registered with Dynadot, LLC and that Respondent is the current registrant of the name. Dynadot, LLC has verified that Respondent is bound by the Dynadot, 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 January 26, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 16, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@xn--google-0wa.com. Also on January 26, 2021, the Written Notice of the Complaint, notifying Respondent of the email 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 February 22, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 operates the widely used Google search engine and offers other products and services. Complainant has used the GOOGLE mark in connection with its products and services for many years and owns registrations for the mark in the United States, China, and many other jurisdictions dating back to as early as 1999. Complainant asserts that the GOOGLE mark has become famous internationally as a result of extensive use, advertising and promotion, media coverage, and consumer recognition.
The disputed domain name <xn--google-0wa.com> was registered in June 2012. It is being used for a website consisting of pay-per-click links that refer to Complainant and its mark. Complainant states that it has not authorized or licensed Respondent to use its mark and that Respondent is not commonly known by the disputed domain name. (The Panel notes that the public whois record for the domain name identifies a privacy registration service as the nominal registrant. The registrar apparently disclosed Respondent's identity to Complainant in December 2020 in connection with a dispute involving another domain name that presumably was registered by someone other than Respondent.)
Complainant contends on the above grounds that the disputed domain name <xn--google-0wa.com> is confusingly similar to its GOOGLE mark; that Respondent lacks rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was 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."
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
The disputed domain name <xn--google-0wa.com> is an internationalized domain name (IDN) rendered in ASCII characters using Punycode; its Unicode equivalent is <googlñe.com>. The disputed domain name thus corresponds to Complainant's registered GOOGLE trademark, with the insertion of the letter "ñ" and the addition of the ".com" top-level domain. These additions do not substantially diminish the similarity between the domain name and Complainant's mark. See, e.g., Google Inc. v. Popov Vitaly, FA 1710030 (Forum Feb. 16, 2016) (finding <ɢoogle.com> (equivalent to <xn--oogle-wmc.com> in Punycode) identical or confusingly similar to GOOGLE); Google Inc. v. Domain Administrator, FA 1422926 (Forum Feb. 10, 2012) (finding <googlae.com>, <googlse.com>, and other domain names confusingly similar to GOOGLE). The Panel considers the disputed domain name to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark (with the introduction of a typographical error) without authorization, and its sole apparent use has been for a website consisting of pay-per-click links that relate to or reference Complainant or its products and services. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Google LLC v. Host Master / Transure Enterprise Ltd, FA 1849072 (Forum July 22, 2019) (finding lack of rights or interests arising from use of domain name incorporating complainant's mark for web page consisting of pay-per-click links to websites related to complainant, its products and services, or those of its competitors); Google Inc. v. Domain Administrator, supra (finding lack of rights or interests arising from use of typosquatted domain names to display competing links).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and is being used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent used a privacy registration service to register a domain name corresponding to a typographical variation on Complainant's famous mark without authorization, and is using the domain name to attract traffic to a web
page consisting of pay-per-click links that relate to or reference Complainant or its products and services. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Khan Academy, Inc. v. Carolina Rodrigues / Fundacion Comercio Electronico, FA 1894219 (Forum May 27, 2020) (finding bad faith based upon typosquatting, use of privacy registration service, and use of domain names to display links to competitors of complainant); Google Inc. v. Domain Administrator, supra (finding bad faith based upon use of typosquatted domain names to display competing links). The Panel finds that the disputed domain name was registered and is being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <xn--google-0wa.com> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 22, 2021
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