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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Google Inc. v. Dmitri Rytsk

Case No. DAU2007-0004

 

1. The Parties

The Complainant is Google Inc., Mountain View, California, United States of America, represented by Middletons Lawyers, Australia.

The Respondent is Dmitri Rytsk, North Curl, Australia.

 

2. The Domain Name and Registrar

The disputed domain name <googlebay.com.au> is registered with IntaServe.

 

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 23, 2007. On May 23, 2007, the Center transmitted by email to IntaServe a request for registrar verification in connection with the domain name at issue. On June 21, 2007, IntaServe 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 .au Dispute Resolution Policy (the “Policy”), the Rules for .au Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au 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 June 21, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 11, 2007. The Response was filed with the Center on July 10, 2007.

The Center appointed The Honourable Neil Anthony Brown QC as the sole panelist in this matter on July 25, 2007. 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 widely-known company incorporated in the United States of America operating principally in providing internet search and related services. It also operates many internet websites including “www.google.com” and an Australian one at “www.google.com.au”. Its famous search engine, known as “Google”, is recognized internationally as one of the most prominent and popular of all search engines.

To promote its business, the Complainant has registered many trademarks worldwide, including four in Australia. They are:

(a) Trademark Registered Number 788234, registered with IP Australia on September 16, 1998 for GOOGLE in classes 9, 38 and 42;

(b) Trademark Registered Number 1049124, registered with IP Australia on April 4, 2005 for GOOGLE in classes 16, 25 and 35; and

(c) Trademark Registered Number 1111537 registered with IP Australia on January 12, 2006 for GOOGLE in classes 9, 38 and 42; and

(d) Trademark Registered Number 1130283 registered with IP Australia on March 2, 2007 for GOOGLE in classes 36 and 38.

The Respondent conducts a computer business and specializes in consumer customer repairs. He registered the disputed domain name on June 11, 2006.

 

5. Parties’ Contentions

A. Complainant

The Complainant alleges that the domain name <googlebay.com.au> should no longer be registered with the Respondent but that it should be transferred to the Complainant.

It contends that this should be done because, within the meaning of paragraph 4 of the Policy, the domain name is confusingly similar to the Complainant’s trademarks, that the Respondent has no rights or legitimate interests in the domain name and that the domain name has been registered or subsequently used in bad faith. The Complainant maintains that it can prove all three of these requirements and that the appropriate remedy is to transfer the domain name to the Complainant.

In support of its case on the first of these three elements, the Complainant relies on the four registered trademarks to which reference has already been made. It then contends that as the disputed domain name consists of the entirety of the word trademark GOOGLE and has had added to it the word ‘ebay’, it is confusingly similar to the trademarks because the internet user will assume that it refers to ‘a sub-branch of the Google operation and related to the auction website, ebay …”.

The Complainant then contends, to establish the second element, that the Respondent has no rights or interests in the domain name because he has not been using the domain name for any bona fide offering of goods or services, is not commonly known by the domain name and is not making a legitimate fair use of the domain, but rather is using it to mislead internet users into thinking there is a connection between the Respondent’s website and the Complainant.

Finally, the Complainant contends that the domain name was registered or is subsequently being used in bad faith. It contends that this is so because the Respondent could not have chosen the “Google” name legitimately, he is using the domain name to offer internet search engine services, which is the same business as the Complainant and he is by that means attempting to attract internet users to his site by falsely suggesting some affiliation with the Complainant.

B. Respondent

The Respondent contends, first, that the domain name is not confusingly similar to the GOOGLE trademarks. “Google” is a generic word meaning “to search Internet with Google search engine” and “bay” means to keep something at a distance, as in to keep it at bay. Thus, the Respondent argues, the suffix “bay” has been added to the generic word “Google”, creating a new word which could not be confused with “Google”. Moreover, he contends, the disclaimer on his website and the criticism and commentary on it would persuade any reasonably prudent internet user to conclude that the website was not associated with Google. Thirdly, the Respondent says, the domain name is not confusingly similar to the GOOGLE trademarks because it is impossible to misspell the word “googlebay”.

With respect to the second issue, the Respondent contends that he has rights and legitimate interests in the domain name because he is referred to by that name in several internet searches, is using the domain name for a criticism site, is not using it for commercial purposes, has posted a disclaimer on the site and has complied with the requirements of the au Domain Registrant Eligibility Policy.

As to the allegations of bad faith, the Respondent contends that there is no evidence that he is attempting to trade off the Complainant’s rights in the trademarks and that his website is essentially a non-commercial one. He also contends that he is providing links to the Complainant’s services and not to his own and that he is complying with the Australian Trademarks Act 1995.

 

6. Discussion and Findings

Paragraph 15 of the Rules provides that the Panel is to decide the complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable.

The Panel therefore turns to discuss the various issues that arise for decision on the facts.

For the Complainant to succeed it must prove, within the meaning of Paragraph 4(a) of the Policy, that:

A. The domain name is identical or confusingly similar to a name, trademark or service mark in which the Complainant has rights; and

B. The Respondent has no rights or legitimate interests in respect of the domain name; and

C. The domain name has been registered or subsequently in used in bad faith.

A. Identical or Confusingly Similar

The Panel finds that the domain name is confusingly similar to the GOOGLE trademarks, details of which appear above and which have been established by evidence annexed to the Complaint. That is so for the following reasons.

First, the dominant feature of the domain name that compels the attention of the potential customer and of any reasonable bystander is the word “google”, which instantly invokes the name Google, being the famous brand of search engine and related internet products. Indeed, the name Google is now so well-known that it is one of the most famous company names in the world and as such it is inconceivable that a reasonable bystander, confronted with the word, could draw any conclusion other than that it was referring to the famous Google company.

The Respondent, however, argues that the word is being used in the domain name as a verb (to “google”) and hence is not referring to Google itself but to the process of what might be called “googling”, but not necessarily with Google facilities. However this may be, even if it were true that the word is being used as a verb, the domain name is still invoking the name Google, and it is the use of this unique name that gives the domain name its meaning and substance.

Secondly, the belief engendered by the domain name, that it is associated with the famous brand Google, is not dispelled in the slightest by adding the word “bay”. The Respondent’s argument is essentially that by adding the word “bay” after “google” he has effectively negated any confusion that might otherwise exist between his domain name and the Complainant’s trademark.

In support of that argument, he says that the word “bay” is a noun meaning “Keep somebody or something at bay is to keep somebody or something at a distance to avoid difficulty or harm” and that the combined word therefore invokes the notion of searching the internet at bay, or “safe” as he puts it, from commercials, advertisements, spy ware and suchlike.

The difficulty for the Respondent in advancing this argument, apart from the fact that it is somewhat tortuous, is that it overlooks the real issue, which is how the objective bystander would view the collocation of the two words “google” and “bay” that have been joined to create the word “googlebay”. The Panel has no doubt that objective bystanders and internet users in general would in all likelihood believe that the Respondent had in effect added, not the word “bay” but “ebay” to ”google” so as to invoke the addition of the famous internet auction site “ebay”.

Moreover, having regard to the spelling and entire presentation of the combined word “googlebay”, the Panel has no doubt that this was done deliberately to create in the mind of the user the idea that the domain name would lead to information on a Google process connected with “ebay”, or as the Complainant correctly describes it, “a sub-branch of the Google operation and related to the auction website, ebay, which will be confusing and misleading to consumers who will therefore assume that the Respondent’s website is related to the Complainant”.

The Respondent advances two other arguments, which in fairness to him should also be discussed.

The first is that the disclaimer on his website and the criticism and commentary on it would persuade any reasonable internet user to conclude that the website was not associated with Google. That argument cannot succeed here because it is now well established that in considering whether a domain name is confusingly similar to a trademark, the comparison must be made between the words in each expression without regard to extraneous factors such as the content of a website to which the domain name resolves. As it is put in the WIPO Overview of WIPO Panel Views on Selected UDRP Questions

“1.2 Is the content of a website relevant in determining confusing similarity?

Consensus view: The content of a website (whether it is similar or different to the business of a trademark owner) is irrelevant in the finding of confusing similarity. This is because trademark holders often suffer from “initial interest confusion”, where a potential visitor does not immediately reach their site after typing in a confusingly similar domain name, and is then exposed to offensive or commercial content. The test for confusing similarity should be a comparison between the trademark and the domain name to determine the likelihood of confusion.

Relevant decisions:

Arthur Guinness Son & Co. (Dublin) Limited v. Dejan Macesic D2000-1698, Transfer;

Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd. D2001-0110, Transfer;

Dixons Group Plc v. Mr. Abu Abdullaah D2001-0843, Transfer;

AT&T Corp. v. Amjad Kausar D2003-0327, Transfer.”

That is not to suggest that disclaimers and the use of domain names to establish criticism websites are irrelevant to the proceedings, but rather that they must be considered at a later stage, as will be seen later in this decision. But at the stage presently under consideration, namely the issue of confusing similarity, they do not affect the result, one way or the other.

The other argument advanced by the Respondent is that the domain name is not confusingly similar to the GOOGLE trademarks because it is impossible to misspell the word “googlebay” instead of Google. This submission is not entirely clear, but it presumably is an argument that an internet user looking for “Google” would not understand that it was represented by the letters that make up the word “Googlebay”. That may be so, but again it misconceives the real question, which is whether an objective observer faced with the domain name would think that the “google” of the domain name was similar to the “google” of the trademarks and would hence be confused by it. In the opinion of the Panel, an objective observer would undoubtedly think that they were the same and that the “google” of the domain name referred to an official activity of the Google company.

Finally, it has also been consistently held that confusing similarity is not negated by the presence in the domain name of suffixes such as the 2LD “.com.au”.

As the Complainant clearly has rights in the registered trademarks as their owner, the Panel finds that the domain name is confusingly similar to the trademarks and that the Complainant has accordingly made out the first of the three elements that it must establish.

B. Rights or Legitimate Interests

Under paragraph 4(a)(ii) of the Policy, the complainant has the burden of establishing that the respondent has no rights or legitimate interests in respect of the domain name.

But by virtue of paragraph 4(c) of the Policy, it is open to a respondent to establish its rights or legitimate interests in a domain name, among other circumstances, by showing any of the following elements:

(i) before any notice to you respondent of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or

(ii) you respondent (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or

(iii) you respondent are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Thus, if the respondent proves any of these elements or indeed anything else that shows it has a right or interest in the domain name, the Complainant will have failed to discharge its onus and the Complaint will fail.

It is well established that, as it is put in the WIPO Overview, that “a complainant is required to make out an initial 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”.

The Panel, after considering all of the evidence in the Complaint and the exhibits attached to it, finds that the Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the domain name. That prima facie case arises from the following considerations: that there is no evidence that the Respondent is known as “google ” or “googlebay”, that it had been using the domain name for a bona fide offering of goods or services or that it had been making a legitimate fair use of the domain name. Those matters are more than sufficient to make out a prima facie case.

The Respondent then seeks to rebut the prima facie case by advancing several arguments.

Commonly known by the domain name

First, he argues that he comes within paragraph 4(c)(ii) of the Policy because he is “commonly known by the domain name” that he has registered. He maintains that this is so because “An Internet user may find a number of references to me as googlebay using an Internet search. Ref1”.

The Panel has accepted the Respondent’s invitation and made the searches of the two sites specified at that reference. The first is a discussion site named Whirlpool and the second is a discussion site named “talkgraphics.com”. It is true that they both contain posting by a contributor identifying themselves as “googlebay” and the Panel accepts that “googlebay” may be a pseudonym of the Respondent. However, neither site refers to the Respondent’s actual name or suggests that he is known to anyone other than himself by that name, either at all or, as the Policy requires, “commonly”. Certainly, no contributor or visitor to either site could possibly deduce that it is the Respondent who is using “googlebay” as his cybername and that the domain name is a name by which he is known.

Indeed, the evidence is to the contrary, for the rules of the Whirlpool site contain express prohibitions on disclosing the real names of contributors and the “talkgraphics.com” site contains the announcement: “Sorry! The administrator has disabled the list of members”. It is in the Panel view not possible to conclude from either site that the Respondent is “commonly known by the domain name”.

The Respondent’s first argument is therefore not enough to rebut the prima facie case.

A criticism site?

The Respondent then says that he has a right or legitimate interest in the domain name because he is using it to criticize “the development activities” of the Complainant. In support of that argument he cites Bridgestone Firestone, Inc., Bridgestone/Firestone Research, Inc., and Bridgestone Corporation v. Jack Myers, WIPO Case No. D2000-0190.

If the Respondent can make out that case on the facts, he may be able show that he has a right or legitimate interest in the domain name. That is so because some UDRP panelists have held that the use of a domain name for a criticism website gives rise to a right or legitimate interest in the domain name because it is being used to promote the cause of free speech, which is said to be legitimate. The WIPO Overview puts the issue and the differing opinions of panelists on the issue in the following way.

“In the event that a domain name confusingly similar to a trademark is being used for a genuine non-commercial free speech website, there are two main views. There is also some division between proceedings involving United States parties and proceedings involving non-United States parties, with few non-United States panelists adopting the reasoning in View 2.

“View 1: The right to criticize does not extend to registering a domain name that is identical or confusingly similar to the owner’s registered trademark or conveys an association with the mark.

“Relevant decisions: Skattedirektoratet v. Eivind Nag, WIPO Case No. D2000-1314, Transfer; Myer Stores Limited v. Mr. David John Singh, WIPO Case No. D2001-0763, Transfer; Triodos Bank NV v. Ashley Dobbs, WIPO Case No. D2002-0776, Transfer; The Royal Bank of Scotland Group plc, National Westminster Bank plc A/K/A NatWest Bank v. Personal and Pedro Lopez, WIPO Case No. D2003-0166, Transfer; Kirkland & Ellis LLP v. DefaultData.com, American Distribution Systems, Inc., WIPO Case No. D2004-0136, Transfer.

“View 2: Irrespective of whether the domain name as such connotes criticism, the respondent has a legitimate interest in using the trademark as part of the domain name of a criticism site if the use is fair and non-commercial.

“Relevant decisions: Bridgestone Firestone, Inc., Bridgestone/Firestone Research, Inc., and Bridgestone Corporation v. Jack Myers, WIPO Case No. D2000-0190, Denied; TMP Worldwide Inc. v. Jennifer L. Potter, WIPO Case No. D2000-0536, Denied; Howard Jarvis Taxpayers Association v. Paul McCauley, WIPO Case No. D2004-0014, Denied.”

The Respondent has therefore squarely raised an issue that has been the subject of extensive debate in UDRP proceedings and one that still gives rise to differences of opinion. Thus, in Bonneterie Cevenole S.A.R.L v. Sanyouhuagong, WIPO Case No D2001-1309 it was said:

“The Panel is well aware that a number of distinguished Panelists take the view that a bona fide non-commercial criticism site connected to a domain name featuring the trademark of a subject of the criticism is fair use of the domain name for the purposes of the Policy.”

That view has been followed in cases such as Howard Jarvis Taxpayers Association v. Paul McCauley, WIPO Case No. D2004-0014. Other panelists, however, including the panelist in Bonneterie Cevenole S.A.R.L. v. Sanyouhuagong (supra) have taken a different view; see also Monty and Pat Roberts, Inc. v. J. Bartell, WIPO Case No. D2000-0300.

What is fundamental, however, to all such considerations is whether the Respondent is conducting a criticism site as a matter of fact. In other words, if a respondent wishes to rely on the criticism site and free speech grounds, he must prove on the balance of probabilities that on the facts of the individual case it really is a criticism site that is being conducted and also that it is being conducted in the pursuit of free speech and not as a guise for an essentially commercial or other improper purpose.

It is here that the Respondent’s case falls down. That is so because the Panel is not satisfied that the Respondent has established a genuine criticism site.

In the first place, it is not enough for the Respondent merely to assert that he established such a site; there must be evidence to persuade the Panel to reach that conclusion and, although in some cases a panel might give a respondent the benefit of the doubt, in the present case there is no basis for doing so.

Secondly, the domain name does not presently resolve to an active website and the Panel has therefore been unable to verify for itself whether the Respondent is conducting a genuine criticism site. However, by using the Wayback Machine at “www.archive.org”, the Panel has been able to verify that as at March 15, 2007 the domain name resolved to the Respondent’s website which, as the Complainant puts it, ‘allow(s) consumers to conduct searches using a range of internet search engines…” and as the Respondent puts it “displayed comparison guide of variety on Internet services included Google”. The parties would therefore appear to be of one mind as to what the website contained, at least on March 15, 2007.

However, it is very clear from an examination of the website and of some of the links on it that it was not a criticism site in any genuine sense at all and was not genuinely promoting the cause of free speech. It is true that there is information on it about the competing offerings of several search engines, namely Google, Vivismo, Microsoft, ebay, Yahoo! and Wikipedia. However, it goes much further than that, for it is clearly designed to encourage support for rival search engines if the user is persuaded by what he or she finds on the site. The Google name is thus being used to attract users who may decide not to use Google, but a rival firm. There is nothing illegitimate in promoting that sort of debate. What is of dubious legitimacy, however, is using the Complainant’s trademark to promote it and under the guise, which is entirely false, that the promotion is being encouraged by Google itself in association with ebay.

Moreover, the site not only contains information in a tabular form that one search engine provides some services and other search engines provide different services, but it also contains links to the services so provided by each competing website. Thus, for example, the Kijiji service offered by “ebay” is a very extensive offering of commercial goods and services in many locations; the user of the Respondent’s website thus has a direct link to all of the suppliers and providers whose names are listed on the Kijiji website. It is therefore somewhat disingenuous to argue that the site is a criticism site when it contains no criticism but in fact it has a substantial commercial element.

In particular, the Panel notes that although the domain name was registered on June 11, 2006, there was no apparent attempt initially to establish a criticism site. Rather, the Wayback Machine shows that as late as August 30, 2006 the site was used for purely commercial purposes, it was laid out and coloured in such a way that some users may well have thought that it was an official Google site, it had no disclaimer and it carried links to all of the usual blandishments offered on such commercial sites from used cars to credit cards. The layout and colouring of the site was also not dissimilar to the layout of pages of the “www.ebay.com.au” website.

It is therefore drawing a long bow to say that the Respondent’s site was established as a criticism site or as one designed in the interest of promoting free speech when its early months were devoted to commercial promotions.

The Panel accordingly is not persuaded that the Respondent has shown that it has a right or legitimate interest in the domain name under this heading.

Other provisions of the Policy

The Respondent also relies on several provisions of the Policy to show that it has a right or legitimate interest in the domain name. In substance the Respondent contends that he met the eligibility criteria when he registered the domain name and that that compliance must now give him a right or legitimate interest in the domain name. However, unlike the UDRP, the auDRP contains a footnote that negates any such conclusion. The footnote is in the following terms:

“ Notes:

[1] …

[2] For the purposes of this policy, auDA has determined that "rights or legitimate interests in respect of the domain name" are not established merely by a registrar’s determination that the respondent satisfied the relevant eligibility criteria for the domain name at the time of registration.”

Accordingly, it does not follow that if the Respondent has complied with the eligibility criteria, it automatically has a right or legitimate interest in the domain name.

Conclusion

As the Respondent has not made out the only two grounds that it relies on for rebutting the prima facie finding against it on this issue, the Panel must conclude that the Complainant has shown that the Respondent has no rights or legitimate interests in the domain name and hence that the Complainant has made out the second of the three elements that it must establish.

C. Registered or Used in Bad Faith

The Complainant must prove on the balance of probabilities that the domain name was registered in bad faith or that it has subsequently been used in bad faith.

Further guidance on how to implement this requirement is to be found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which shall be evidence of the registration and use of a domain name in bad faith, although other circumstances may also be relied on, as the four circumstances are not exclusive.

The four specified circumstances are:

“(i) circumstances indicating that you (the Respondent) have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to another person for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or

(ii) you (the Respondent) have registered the domain name in order to prevent the owner of a name, trademark or service mark from reflecting that name or mark in a corresponding domain name; or

(iii) you (the Respondent) have registered the domain name primarily for the purpose of disrupting the business or activities of another person; or

(iv) by using the domain name, you (the Respondent) have intentionally attempted to attract, for commercial gain, Internet users to a website or other online location, by creating a likelihood of confusion with the complainant’s name or mark as to the source, sponsorship, affiliation, or endorsement of that website or location or of a product or service on that website or location.”

The Complainant does not rely specifically on these criteria, but rather on a general notion of bad faith which it is entitled to do. It contends that it can be concluded that the Respondent intended to register or use the domain name in bad faith because the GOOGLE trademark is so distinctive that the Respondent must have intended to “trade off’ the Complainant’s rights in that mark. Further, the Complainant says that it is significant that the Respondent is using his domain name and website to offer the same services as the Complainant, thus increasing the chances of confusion. Finally, the Complainant says that the mere fact that the domain name was registered several years after the trademarks is itself evidence of bad faith and in that regard it relies on the decision in The University of Windsor v. Modern Empire Internet Limited, WIPO Case No. D2006-1238.

The Respondent maintains that he has not acted in bad faith because there has been no real confusion, he has not made any money out of using the domain name and his website carried a disclaimer dissociating it from the Complainant.

On balance, however, the Panel is satisfied that the domain name was registered in bad faith within the meaning of that expression as it is used in the Policy. The use in the domain name of such a famous trademark GOOGLE is almost evidence in itself of bad faith, for it instantly arouses suspicion that at least one motivation for registering the domain name must have been to create a false impression that the website was in some way connected with Google itself.

As the Panel has already indicated, it is also concerned that when the website was first established it was purely commercial, with links to many commercial enterprises. Even the most recent manifestation of the website that the Panel has seen contains links to commercial enterprises. Even without that essentially commercial element, the very fact that the Respondent has apparently used the trademark without permission to extol the rival attractions of search engines in competition with Google is an improper use of the GOOGLE trademark, for he could easily have done the same thing without using the Complainant’s trademark.

In addition, the Panel is attracted to the argument in The University of Windsor v. Modern Empire Internet Limited (supra) that the registration of a domain name mirroring a trademark so long after the trademark was first registered, is an indication of bad faith. So also are other features of the present case that were present in the University of Windsor Case, namely that the website was linked to various other websites, that there is no connection with the trademark owner that might justify the use of its name and that the Respondent must be taken to have been aware of what he was doing, namely in this case taking the Complainant’s name and trademarks and using them without permission to promote commercial operations and more recently to give exposure to rival search engine providers such as Microsoft.

When the Respondent’s website was first established it carried no disclaimer and accordingly the alleged disclaimer that has more recently been posted on the website cannot negate the finding of bad faith at the time of registration.

In view of this finding, it is not necessary to discuss whether there has also been bad faith use. However, it must be apparent from the above comments that the Panel’s view is that the domain name and the website were subsequently used in bad faith at least until August 30, 2006 when the site was linked to so many commercial operations and again until at least March 15, 2006 when it promoted the attractions of rival search engines and contained links to commercial services. Moreover, in the opinion of the Panel, the overall content of the site makes the alleged disclaimer ineffective.

It is clear therefore that the Complainant has shown both bad faith registration and use and has therefore made out the third of the three elements that it must establish.

 

7. 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 <googlebay.com.au> be transferred to the Complainant.

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The Honourable Neil Anthony Brown QC
Sole Panelist

Dated: August 8, 2007