Google LLC v. Rekcah Uoy Era
Claim Number: FA2103001936420
Complainant is Google LLC ("Complainant"), represented by Fabricio Vayra of Perkins Coie LLP, District of Columbia, USA. Respondent is Rekcah Uoy Era ("Respondent"), Zimbabwe.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <flutter.website>, registered with NameCheap, Inc.
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 March 12, 2021; the Forum received payment on March 12, 2021.
On March 12, 2021, NameCheap, Inc. confirmed by email to the Forum that the <flutter.website> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 March 15, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 5, 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@flutter.website. Also on March 15, 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 April 9, 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 offers a wide range of Internet-related products and services, including online ad placement services, as well as Internet search services, cloud services, translation services, mapping services, Internet browser software, and web publishing services. Complainant uses the FLUTTER trademark for a user-interface toolkit for building applications that is used by developers and organizations around the world. Complainant has used this mark since 2015; it is registered in the United States and many other jurisdictions, as is the F logo that Complainant uses with the FLUTTER mark.
Respondent registered the disputed domain name <flutter.website> in June 2019. The registration was held in the name of a privacy registration service prior to the commencement of this proceeding, at which time the privacy shield was lifted by the registrar. Respondent is using the disputed domain name for a website that prominently displays the FLUTTER mark and F logo, states that it is "Made by Google," and includes substantial content copied from and links to Complainant's FLUTTER website. There are advertisements located throughout Respondent's website, presumably generating revenue for Respondent; some of these are for technology-related products and services that compete with Complainant's offerings.
Complainant contends on the above grounds that the disputed domain name <flutter.website> is confusingly similar to its FLUTTER 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 <flutter.website> corresponds to Complainant's registered FLUTTER trademark, with the ".website" top-level domain appended thereto. The addition of a top-level domain is normally irrelevant for purposes of paragraph 4(a)(i) of the Policy. See, e.g., Waymo LLC v. Ronald Tsitsey, FA 1918515 (Forum Nov. 27, 2020) (finding <waymo.website> identical to WAYMO); Google LLC v. Navin Sharma, FA 1894583 (Forum May 29, 2020) (finding <getflutter.dev> confusingly similar to FLUTTER). The Panel considers the disputed domain name to be identical to Complainant's registered mark.
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 without authorization, and it is being used for an apparently commercial website that displays Complainant's mark and logo and contains substantial content copied from Complainant's website. Such use does not give rise to rights or legitimate interests under the Policy. See, e.g., Licensing IP International S.à.r.l. v. Harold Haynes, FA 1897515 (Forum June 24, 2020) (finding lack of rights or interests arising from commercial website displaying complainant's mark and logo and otherwise mimicking appearance of complainant's site); Roundabout Theatre Co., Inc. v. Kondrat Jablonski, FA 1599161 (Forum Feb. 10, 2015) (finding lack of rights or interests arising from website consisting predominantly of material copied from complainant's site, with the addition of pay-per-click links to unrelated sites).
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 Complainant's mark. The domain name is being used for a website that displays Complainant's mark and logo, includes substantial content copied from Complainant's website, and appears to be designed to pass off as Complainant. The Panel infers that Respondent's intent in creating and maintaining this website is to generate revenues via pay-per-click advertising links. Such conduct is indicative of bad faith registration and use under the Policy. See, e.g., Roundabout Theatre Co., Inc. v. Kondrat Jablonski, supra (finding bad faith where domain name corresponding to trademark was used for website consisting predominantly of material copied from complainant's site, with the addition of pay-per-click links to unrelated sites). The Panel so finds.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <flutter.website> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: April 12, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page