The Complainant is Google LLC, United States of America (“USA”), represented by Cooley LLP, USA.
The Respondent is 舒鑫 (Shu Xin), China. 2. The Domain Name and Registrar
The disputed domain name is registered with Xin Net Technology Corp. (the “Registrar”). 3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on August 14, 2019. On August 14, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 16, 2019, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Complainant filed an amended Complaint in English on August 30, 2019.
On August 20, 2019, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Complainant requested that English be the language of the proceeding on August 20, 2019. The Respondent sent informal email communications on August 30, 2019 (in Chinese), August 31, 2019 (in English) and September 10, 2019 (bilingual Chinese-English), regarding a potential settlement or suspension of this proceeding. On September 9, 2019, the Complainant notified the Center that it did not want a suspension of this proceeding.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint in English and Chinese, and the proceedings commenced on September 10, 2019. In accordance with the Rules, paragraph 5, the due date for Response was September 30, 2019. The Respondent did not submit any formal response.
The Center appointed Deanna Wong Wai Man as the sole panelist in this matter on October 8, 2019. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant is a global information technology company, headquartered in the USA, and provides an online search engine, as well as a variety of other services. The Complainant states that its search engine has become one of the most widely used Internet search engines in the world, and that it has been recognized as one of the most popular websites on the Internet for many years. The Complainant also provides evidence that on February 1, 2017, the Brand Finance Global 500 ranked the Complainant’s trademark GOOGLE as the most valuable brand in the world.
The Complainant owns a large portfolio of trademark registrations (word and device marks) for GOOGLE, for instance, Chinese trademark registration number 5556520, registered on December 7, 2009 and USA trademark registration number 2884502, registered on September 14, 2004. The disputed domain name was registered on October 6, 2018. The Complainant submits evidence that the disputed domain name was used to redirect Internet users to , a competing online search engine provided by Microsoft Corp., and that the disputed domain name was also used on several subdomains associated with the disputed domain name (such as and ) as well as on a GitHub page (). 5. Parties’ Contentions A. Complainant
The Complainant essentially contends that the disputed domain name is confusingly similar to its trademarks for GOOGLE, that the Respondent has no 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.
The Complainant claims that its trademarks are famous and well-regarded in the information technology industry, and provides evidence of its marketing materials and awards, as well as prior decisions in domain name proceedings, which state that the Complainant and its GOOGLE trademark are well known. Moreover, the Complainant provides evidence that the disputed domain name was used to redirect Internet users to , a competing search engine service provided by Microsoft Corp. The Complainant essentially contends that such use does not confer any rights or legitimate interests in respect of the disputed domain name and constitutes use in bad faith.
The Complainant requests the transfer of the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings 6.1. Preliminary Issue: Language of proceedings
Pursuant to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceedings.
On August 20, 2019, the Center informed the Complainant that the language of the Registration Agreement is Chinese. On that same day, the Complainant confirmed its request that the language of the proceeding be English. The Respondent sent three informal email communications on August 30, 2019 (in Chinese), August 31, 2019 (in English) and September 10, 2019 (bilingual Chinese-English), regarding a potential settlement or suspension of this proceeding, but did not comment on the language of the proceeding or on the merits of this proceeding.
The Panel has carefully considered all elements of this case, in particular, the Complainant’s request that the language of the proceeding be English and the lack of comment on the language of the proceeding and the lack of response on the merits of the Respondent (the Panel notes that the Respondent had the opportunity to put forward arguments in either English or Chinese); the fact that the Complainant provides evidence that the website linked to the disputed domain name contained text which was mainly in English, and the fact that the Respondent sent two emails on August 31, 2019 (in English) and on September 10, 2019 (bilingual Chinese-English), from which the Panel deducts that the Respondent is able to understand and communicate in English; and the fact that Chinese as the language of proceedings could lead to unwarranted delays and costs for the Complainant. In view of all these elements, the Panel rules that the language of proceedings shall be English. 6.2. Discussion and Findings on the merits
The Policy requires the Complainant to prove three elements:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Based on the evidence and arguments submitted, the Panel’s findings are as follows: A. Identical or Confusingly Similar
The Panel finds that the Complainant has provided sufficient evidence that it has valid rights in the sign GOOGLE, based on its use and registration of the same as a trademark, incidentally commencing years prior to the registration of the disputed domain name.
Moreover, as to confusing similarity of the disputed domain name with the Complainant’s trademarks, the disputed domain name consists only of the Complainant’s GOOGLE trademark, from which the letter “l” is replaced by the somewhat visually similar numeral “1”. The Panel concludes that this replacement is an obvious misspelling of a trademark, which moreover preserves the conceptual and visual similarity with the Complainant’s GOOGLE trademarks. According to the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (the “WIPO Overview 3.0”), section 1.9, “A domain name which consists of a common, obvious, or intentional misspelling of a trademark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element”. Accordingly, the Panel rules that the disputed domain name is confusingly similar to the Complainant’s trademarks, and the Complainant has satisfied the requirements for the first element under the Policy. B. Rights or Legitimate Interests
The Complainant has demonstrated that the Respondent is not an authorized reseller, service provider, licensee or distributor, and is not making legitimate noncommercial use or fair use of the Complainant's trademarks. To the contrary, according to the evidence provided by the Complainant, the website linked to the disputed domain name was used to redirect Internet users to , which is a search engine provided by Microsoft Corp., which directly competes with the Complainant’s search engine marketed under the GOOGLE trademarks. Furthermore, the Respondent is not commonly known by the disputed domain name. The Panel therefore considers that none of the circumstances of rights or legitimate interests envisaged by paragraph 4(c) of the Policy apply. The Panel also notes that no evidence or arguments have been submitted by the Respondent in reply. The Panel therefore rules that the Complainant has satisfied the requirements for the second element under the Policy. C. Registered and Used in Bad Faith
Given the global reputation and fame of the Complainant's trademarks, the registration of the disputed domain name, which incorporates such trademarks (be it with an intentional misspelling), is clearly intended to mislead and divert consumers to the disputed domain name. The Panel finds that the registration of the disputed domain name with the intentional misspelling of the Complainant’s famous mark (“typosquatting”) by the Respondent, who is entirely unaffiliated with the Complainant, is by itself evidence of bad faith of the Respondent (see in this regard also Randstad Holding nv v. Pinaki Kar,WIPO Case No. D2013-1796). Moreover, even a cursory Internet search at the time of registration of the disputed domain name would have made it clear to the Respondent that the Complainant owned, and owns, trademarks in GOOGLE and uses these marks extensively throughout the world. In the Panel’s view, these elements clearly indicate the bad faith of the Respondent, and the Panel therefore rules that it has been demonstrated that the Respondent registered the disputed domain name in bad faith.
As to use of the disputed domain name in bad faith, the Complainant provides evidence that the disputed domain name was used to redirect Internet users to , a competing online search engine provided by Microsoft Corp., and that the disputed domain name was also used on several subdomains associated with the disputed domain name (such as and ). The Panel concludes that the fact that the Respondent used the disputed domain name to mislead unsuspecting Internet users by typosquatting a domain name confusingly similar to the Complainant’s trademarks, and directing them to a search engine which directly competes with the Complainant’s search engine, is clear evidence of bad faith. The creation of several subdomains of the disputed domain name, which are also confusingly similar to the Complainant’s trademarks, further reinforces this finding. On the basis of these elements, the Panel rules that it has been demonstrated that the Respondent is using the disputed domain name in bad faith.
Finally, the Respondent has failed to provide any response or evidence to establish its good faith or absence of bad faith. The Panel therefore rules that the Complainant has satisfied the requirements of the third element under the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Deanna Wong Wai Man
Sole Panelist
Date: October 22, 2019
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