DECISION

 

Google LLC v. Nikita Modi

Claim Number: FA2310002067959

 

PARTIES

Complainant is Google LLC ("Complainant"), represented by Griffin Barnett of Perkins Coie LLP, District of Columbia, USA. Respondent is Nikita Modi ("Respondent"), India.

 

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <ytinstaviews.com>, registered with NameCheap, Inc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Sandra J. Franklin as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on October 26, 2023; Forum received payment on October 26, 2023.

 

On October 26, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <ytinstaviews.com> 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 October 27, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 2023 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@ytinstaviews.com. Also on October 27, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On November 17, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed

Sandra J. Franklin as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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.       Respondent's <ytinstaviews.com> domain name is confusingly similar to Complainant's YOUTUBE and YT MUSIC marks.

 

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

 

3.       Respondent registered and uses the <ytinstaviews.com> domain name in bad faith.

 

B. Respondent did not file a Response.

 

FINDINGS

Complainant, Google LLC offers search engine, entertainment, and other technology goods and services. Complainant holds a registration for the YOUTUBE mark with the United States Patent and Trademark Office ("USPTO") (Reg. No. 3,711,233, registered November 17, 2009), and for the YT MUSIC mark with the EUIPO (Reg. No.17960102, registered January 31, 2019).

 

Respondent registered the <ytinstaviews.com> domain name on June 23, 2020, and uses it to provide "views" to YOUTUBE and other social media platforms.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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

The Panel finds that Complainant has rights in the YOUTUBE and YT MUSIC marks based on registration with the USPTO and the EUIPO. See Red Hat, Inc. v. Muhammad Shahzad, FA 1787738 (Forum June 19, 2018) ("Registration of a mark with multiple trademark agencies is sufficient to demonstrate rights to a mark per Policy ¶ 4(a)(i).").

 

Respondent's <ytinstaviews.com> domain name uses YT, an oft-used abbreviation of Complainant's YOUTUBE mark, and part of Complainant's YT MUSIC mark, and simply adds the descriptive term "instaviews" and the gTLD ".com". Adding or removing descriptive terms and a gTLD is insufficient to differentiate a disputed domain name from a complainant's mark under Policy ¶ 4(a)(i).  See The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) ("[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).").  The Panel finds that Respondent's <ytinstaviews.com> domain name is confusingly similar to Complainant's YOUTUBE and YT MUSIC marks.

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

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 does not have rights or legitimate interests in the <ytinstaviews.com> domain name because Respondent is not commonly known by the domain name and is not authorized to use Complainant's marks. The WHOIS information for the disputed domain name lists the registrant as "Nikita Modi". Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See SPTC, Inc. and Sotheby's v. Tony Yeh shiun, FA 1810835 (Forum Nov. 13, 2018) (finding no rights or legitimate interests in the <sothebys.email> domain name where the WHOIS identified Respondent as "Tony Yeh shiun,"  Complainant never authorized or permitted Respondent to use the SOTHEBY'S mark, and Respondent failed to submit a response).

 

Complainant contends that Respondent also does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use by using it to offer services that artificially increase views on social media platforms.  Using a disputed domain name to divert traffic for a respondent's benefit is not 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).  See Adobe Inc. v. Haris Naeem, FA 197684 (Forum Jan. 5, 2022) (finding that Respondent used the disputed domain name to divert Internet users to its website where it promotes services for artists to artificially increase the popularity of the artist's profile in violation of Complainant's Terms of Service, and finding that this is not 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 evidence showing that disputed domain name resolves to webpages that offer services to artificially increase views on Complainant's and other social media platforms, in violation of Complainant's Terms of Service.  The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration and Use in Bad Faith

Complainant argues that Respondent registered and uses the <ytinstaviews.com> domain name in bad faith by using it to trade off the value of Complainant's well-known YOUTUBE and YT MUSIC marks. Using a disputed domain name to attract Internet traffic to a site that offers unauthorized services related to a complainant's business evinces bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where "Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant's own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant."); see also 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).") Accordingly, the Panel finds bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv).

 

Complainant also argues that Respondent registered the disputed domain name with knowledge of Complainant's rights in the YOUTUBE and YT MUSIC marks, due to the fame of the marks. The Panel agrees, noting that Respondent uses Complainant's YOUTUBE mark and YT MUSIC logo to offer services directly related to Complainant's services, in violation of Complainant's Terms of Service, and finds further bad faith under Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").

 

The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).

 

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 <ytinstaviews.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Sandra J. Franklin, Panelist

Dated: November 19, 2023