WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Google Inc. v. Edmunds Gaidis Case No. DRO2008-0020 1. The Parties
The Complainant is Google Inc., California, of United States of America, represented by Rominvent S.A., Romania.
The Respondent is Edmunds Gaidis, Rezekne, of Latvia. 2. The Domain Name and Registrar
The disputed domain name is registered with RNC.ro. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 22, 2008. On September 23, 2008, the Center transmitted by email to RNC.ro a request for registrar verification in connection with the domain name at issue. On September 24, 2008, RNC.ro transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 30, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was October 20, 2008. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent's default on October 28, 2008.
The Center appointed Mihaela Maravela as the sole panelist in this matter on November 6, 2008. 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.
The Panel examined all notifications of the Center, and finds that they comply with the formal requirements of the Rules and Supplemental Rules, and that the Administrative Panel was properly constituted. The Panel also examined the Complaint, and finds that Complainant has erroneously indicated the first name of the Respondent. As such, the Complainant indicated the Respondent as being Mr. Edmund Gaidis, while the correct name appears to be Edmunds Gaidis (i.e. this results from the communication delivered by e-mail by the Registrar to the representative of the Complainant on August 18, 2008 and from the communication transmitted by the registrar to the Center by e-mail on September 24, 2008). It appears, however, that this is only a scrivener's error since the Respondent has the same address, e-mail address and telephone with Mr. Edmunds Gaidis, the domain name holder according to the Registrar. For these reasons, the Panel considers Mr. Edmunds Gaidis as the Respondent, and finds that the Complaint complies with the formal requirements of the Rules and Supplemental Rules.
Language of the proceedings
As regards the question of the language applicable to this dispute, paragraph 11(a) of the Rules provides:
“Unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding.”
As was stated by the panel in Groupe Auchan v. xmxzl,WIPO Case No. DCC2006-0004:
“Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding.”
Also, the consensus view of the WIPO panelists is that the language of the proceedings is the language of the registration agreement, unless both parties agree otherwise (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Section 4.3).
In this case, there is no evidence of agreement between the parties with respect to the language of the proceedings and, according to the information received from the Registrar, the language of the registration agreement is English.
Under these circumstances, the Panel determines under paragraph 11(a) of the Rules that the language of these proceedings be English. 4. Factual Background
The Complainant is an American corporation founded and established in California in 1998. The Complainant runs today one of the world's most popular search engines on the Internet.
The Complainant launched the personalized homepage product in May 2005, and then re-branded the product under the IGOOGLE name in May 2007. This product is currently launched in 42 languages (including Romanian) and 70 countries, and the product has tens of millions of users. The Complainant registered the trademark IGOOGLE as a communitarian trademark on August 30, 2007 for the classes of goods 9, 38, 42. 5. Parties' Contentions A. Complainant
The Complainant contends that the domain name is identical to its IGOOGLE trademark.
The Complainant contends that the Respondent has no prior rights or legitimate interest in or to its trade name or trademark. It contends that the Respondent is not a licensee of the Complainant, nor is the Respondent otherwise authorized to use its trademarks; that the IGOOGLE trademark is well known, internationally registered and distinctive and that the Respondent could have chosen any numerous other domain names while it has chosen one identical to its trademarks which implies a lack of any valid right or interest in the domain name.
The Complainant contends that the Respondent has registered the domain name in bad faith. It contends that there was no evidence of the Respondent's use, or demonstrable preparations to use the domain name in connection with a bona fide offering of goods and services. It contends also that because of the wide spread use and reputation of the trademark IGOOGLE Internet users would immediately believe that the disputed domain name is in some way associated with the Complainant. Finally, the Complainant affirms that the domain name does not resolve to a website or another on-line presence, and the passive holding of a domain name is indicative of bad faith registration and use. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Due Process
Where, as in this case, a respondent does not submit a response, the rules of due process require the Panel to verify, to the extent possible, that the Respondent is aware of the present proceedings. The Panel is satisfied, on the basis of the file documentation, that this is the case.
A copy of the Complaint was sent by the Center to the Respondent by courier and by e-mail to the e-mail address of the Respondent. As the Respondent briefly
answered the e-mails sent to this email address by the Center when it acknowledged receipt of the Complaint, the Panel concludes that this email address is active and that Respondent uses this address.
The Panel therefore assumes that the Respondent has received the Complaint and is aware of the proceedings, but has chosen not to respond (See, e.g. Pizza Hut International, LLC v. Kim Beom Sung,WIPO Case No. DRO2002-0003). 7. Discussion and Findings
“A Panel shall 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 15(a) of the Rules.
Applied to this case, Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:
(i) that the domain name registered by the Respondent is identical or confusingly similar to the trademark in which the Complainant has rights; and,
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and,
(iii) that the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The domain name is identical to the Complainant's prior trademark IGOOGLE. It is well accepted that a top-level domain, in this case “.ro”, is to be ignored when assessing identity or confusing similarity of a trademark and a domain name (See, e.g. VAT Holding AG v. V,WIPO Case No. D2000-0607; Billa Aktiengesellschaft v. Ganea Nicolae,WIPO Case No. DRO2002-0001; Inter-IKEA Systems B.V. v. SC Agis International Sport S.R.L.,WIPO Case No. DRO2006-0001; Auchan v. Web4comm Srl Romania,WIPO Case No. DRO2005-0001).
The Panel therefore finds that the requirement of paragraph 4(a)(i) of the Policy is satisfied. B. Rights or Legitimate Interests
The consensus view of WIPO panelists concerning the burden of establishing no rights or legitimate interests in respect of the domain name is as follows:
“While the overall burden of proof rests with the complainant, panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is often primarily within the knowledge of the respondent. Therefore a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP.” (See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Section 2.1.)
In the present case the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in respect of the domain name and Respondent has failed to assert any such rights. (See, e.g. Barbara Brennan Inc. v. Texas International Property Associates,WIPO Case No. D2008-0351; Sanford Winery Company v. Matt Geiser,WIPO Case No. D2008-0210).
By not submitting a Response, the Respondent has failed to invoke any circumstances, which could demonstrate any right or legitimate interest in the domain name. Furthermore, considering that Respondent has not contested that he currently does not use the domain name (it does not resolve to a website created by Respondent or some other on-line presence of the Respondent), there are no indications that the Respondent could demonstrate a right or legitimate interest in the domain name. (See, e.g. Pizza Hut International, LLC v. Kim Beom Sung,WIPO Case No. DRO2002-0003).
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the domain name at issue. C. Registered and Used in Bad Faith
To fulfill the third requirement, the Complainant must prove that the domain name has been registered and is being used in bad faith. Paragraph 4(b) of the Policy sets out a number of circumstances that shall, in particular but without limitation, be evidence of registration and use of a domain name in bad faith:
(i) Circumstances indicating that the Respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name to the Complainant who is the owner of the trademark, or to a competitor of the Complainant, for a valuable consideration in excess of the Respondents documented out-of-pocket costs directly related to the domain name.
(ii) Circumstances indicating that the Respondent has registered the domain name in order to prevent the owner of the trademark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct.
(iii) Circumstances indicating that the Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor.
(iv) By using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website 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 the said website location or of a product or service on that website location.
However, the requirement of the Policy of a domain name “being used in bad faith” is not limited to positive actions (see, e.g. Beiersdorf AG v. Web4comm Srl
Romania,WIPO Case No. DRO2005-0002). In this particular case, the following actions are considered as use in bad faith:
- the Respondent has provided no evidence whatsoever of any actual or contemplated good faith use by it of the domain name,
- the Respondent has not contested any of the allegations made by the Complainant,
- Any use of the domain name would lead the public to the conclusion that it, and its connecting websites, were associated with the Complainant.
In light of these particular circumstances, the Panel concludes that the Respondent's passive holding of the domain name in this particular case satisfies the requirement of paragraph 4(a)(iii) that the domain name “is being used in bad faith” by the Respondent.
Also, particularly given the fame of the Complainant and the market value of their marks, the Panel agrees with the view expressed in AT&T Corp. v. Linux Security Systems,WIPO Case No. DRO2002-0002, that:
“Most of the time it is quite difficult, if not impossible to actually show bad faith with concrete evidence, particularly given the limited scope of the inquiry in these proceedings; one should not expect to easily find “the smoking gun”. While bad faith cannot be presumed, once Complainant has presented some evidence pointing in that direction, it is then incumbent upon Respondent to either respond or explain why its conduct should not be assimilated to bad faith. Panel's understanding of the Policy is that although the initial burden to prove Respondent's bad faith in the registration or the use of the disputed Domain Name relies squarely on the shoulders of Complainant, such obligation is only to make out a prima facie case, and once it has done so, as Panel finds it did in the present case, it is then incumbent upon the Respondent to either justify or explain its business conduct (if not to demonstrate the contrary). Failure to do so will, in some circumstances, enable the Panel to draw a negative inference. In the case at hand, the Respondent has elected (or failed) not to put forward any justification for its registration and use of the Domain Name and, in the circumstances, the Panel does draw a negative inference out of such omission. See Société Des Bains De Mer Et Du Cercle Des Étrangers à Monaco v. Iggi Networks Media Group,WIPO Case No. D2000-1324 (December 18, 2000), Hebdomag Inc. v. Illuminaty Marketing,WIPO Case No. D2001-0206 and InterTrade Systems Corporation v. Donna Lawhorn, FA0204000112488 Nat. Arb. Forum (July 15, 2002).”
Given the above circumstances, the Panel concludes that the domain names was registered and used in bad faith.
The Panel concludes that the Complainant has succeeded in proving the three elements of paragraph 4(a) of the Policy. 8. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name, be transferred to the Complainant.
Mihaela Maravela
Sole Panelist
Dated: November 20, 2008.
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