Before the:
WORLD INTELLECTUAL PROPERTY ORGANIZATION
ARBITRATION AND MEDIATION CENTER
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Google
Inc
Representative:
Mr Tony Watson
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Case No: WIPO Case No_ DAU2007-0004
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-V-
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Disputed Domain Name: googlebay.com.au |
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Dimitri Rytsk Post Box 4102 North Curl Curl 2099 NSW
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RESPONSE
I. Introduction
On Thursday, 21 June 2007 6:30 PM, the Respondent received a Notification of Complaint and Commencement of Administrative Proceeding from the WIPO Arbitration and Mediation Center (the Center) by e-mail and on 5 July 2007 by courier informing the Respondent that an administrative proceeding had been commenced by the Complainant pursuant to the:
The Policy - .au Dispute Resolution Policy
The Rules - Rules for au Dispute Resolution Policy
The Supplemental Rules WIPO Supplemental Rules for auDRP
The Center set July 11 2007 as the last day for the submission of a Response by the Respondent.
Respondent’s Contact Details
Name: Dimitri Rytsk
Address: Post Box 4102 North Curl Curl 2099 NSW Australia
Telephone: 0417456095
Fax: 02 94012770
E-mail: sales@manlyelectronics.com.au
The Respondent’s preferred method of communications directed to the Respondent in this administrative proceeding is:
Electronic-only material
Method: e-mail
Address: sales@manlyelectronics.com.au
Contact: Dimitri Rytsk
Material including hardcopy
Method: fax, post/courier
Address: POB 4102 North Curl Curl 2099 NSW Australia
Fax: 02 94012770
Contact: Dmitri Rytsk
Response to Statements and Allegations Made in Complaint
The Respondent hereby responds to the statements and allegations in the Complaint and respectfully requests the Administrative Panel to deny the remedies requested by the Complainant.
III. Response to Statements and Allegations Made in Complaint
The Respondent hereby responds to the statements and allegations in the Complaint and respectfully requests the Administrative Panel to deny the remedies requested by the Complainant.
A. Whether the domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
Refutation:
1. I can see no evidence of solid probability of the “instant confusion” googlebay.com.au with Google affiliation by Google Inc customers “around the globe.”
googlebay is a sum of generic words google and bay. “google” is a verb meaning “to search Internet with Google search engine” (Oxford English Dictionary). Bay is as noun. “Keep somebody or something at bay is to keep somebody or something unpleasant at a distance to avoid difficulty or harm” (Encarta). googlebay.com.au used to be a safe (none commercial, ads or spyware free, etc) comparison collection of links to search services. Such a cross-reference, in fact, reduces confusion with so many searches available on the Internet. There was no traffic to that site and used it mostly for my conveniences. Ref 5
Furthermore, follow up WIPO Case No. D2003-0785:
If the fact is accepted that a plural form of an English family name and a part of famous trademarks (such as Catherine Elizabeth Middleton - an acquaintance of Prince William of Wales or old comics – Middletons) makes middletons “new none existing in English word” tidily associated with a law firm, avoiding confusion with English descendants, royalty or other English matter (which that law firm barely is), then one shall agree, that “adding a suffix” to a generic word google makes new word googlebay, indeed, none existing in English and shell not be confused with someone or something more respectable associated with a root of this word.
2. Similar to respondent in WIPO Case No. D2000-0190 I have posted disclaimers on the website homepage. Themes used for googlebay.com.au are substantially different from a trade marked Google page look. Also, before google thread, I have included criticism and commentary on the site so that a reasonably prudent Internet user can tell that the site is not affiliated with Google. Above comply with domain name and trademark use under auDRP Paragraph 4(c)(iii) as well as p.122.1.c of Australian Trade Mark Act 1995.
URLs of backup copies of website are in Ref 2.
3. It is impossible to misspell googlebay instead of Google. I would love to hear explanations and evidence of how someone can be “deceptively diverted” to googlebay.com.au from google.com or google.com.au . I do specialize on consumer computer repairs. All of my customers are Internet users. They are Google or other Internet search engines customers. Most of them have difficulties even to spell or remember googlebay.
B.Whether the Respondent has rights or legitimate interests in respect of the domain name;
Allegation: “The Respondent is not commonly known by the Disputed Domain Name”
Refutation:
1. It is not practical to use Yellow Pages to reveal presence of somebody on the Internet. An Internet user may find a number of references to me as googlebay using an Internet search. Ref 1
Saying that, I see no legal grounds why it is necessary to be known under a domain name to legally have one. Apart of above I see no proof, therefore no need, to disapprove other subjective accusitions mentioned in Complaint in p.V(B).
2. I do have rights to have the domain name:
a) By serve as non-commercial platform to criticize the development activities of Complainant as in WIPO Case No. D2000-0190 and to satisfy auDRP, p.4(c)(iii). Ref 2
b) By using the domain without attempt of selling and by stating clear that the domain is not affiliated with Google to avoid confusion to satisfy auDRP p4c(i) . Ref 2
c) By having an Australian registered business with ABN number to satisfy Domain Registrant Eligibility Policy (2004-01) p2.1 Ref3
d) By having personal details not being changed since domain registration. to satisfy Domain Registrant Eligibility Policy (2004-01) p2.2 Ref 3
e) By using domain name at least for email purposes to satisfy Registrant Eligibility Policy (2004-01) p2.3
C.Whether the domain name has been registered and is being used in bad faith.
1. No material served in support to proof accusation of “attempting to trade off the Complainant's rights in the Trade Marks”. The level of confusion of Complainant trademarks and disputed domain is not established nether proved at the first place.
Assuming that some complainant rights in they trademarks may be extended on googlebay.com.au name as well, I assure that I have not attempted to sell a domain name nor I advertised, commercially used one, nor I am in a size of a competitor to Google search. I have not collected a cent out of use of the domain. I have tried, though, to cover out-of-the-pocket hosting expenses ($10) by displaying my hosting provider (Dreamhost) link. By an agreement with Dreamhost an income from such referral would cover hosting expenses only.
2. Front web page of the disputed domain displayed comparison guide of variety of Internet services included Google. I provided links to Complainant services, not my products. According to Australian trademark act 1995 p.122.1.b(i) “person uses a (trade mark) sign in good faith to indicate the kind, quality, quantity, intended purpose, value, geographical origin, or some other characteristic, of goods or services;” or p.122.1.c “the person uses the trade mark in good faith to indicate the intended purpose of goods (in particular as accessories or spare parts) or services”.
To avoid confusion a clear disclaimer has been present on website.
3. For the same reason as mentioned in p.A2 above I constitute legitimate noncommercial and fair use within the meaning of the Policy
Ref 2
Administrative Panel
The Respondent elects to have the dispute decided by a single-member.
V
Other Legal Proceedings
No other legal preceding known to respondent
VI
A copy of this Response has been sent or transmitted to the Complainant on [date] by [indicate methods of communication and contact details used, with reference to Rules, para. 2(b)].
This Response is submitted to the Center in electronic form (except to the extent not available for annexes), and in four (4) sets together with the original.
VII
No payment required
VIII
The Respondent agrees that, except in respect of deliberate wrongdoing, an Administrative Panel, the World Intellectual Property Organization and the Center shall not be liable for any act or omission in connection with the administrative proceeding.
The Respondent certifies that the information contained in this Response is to the best of the Respondent’s knowledge complete and accurate, that this Response is not being presented for any improper purpose, such as to harass, and that the assertions in this Response are warranted under the Rules and under applicable law, as it now exists or as it may be extended by a good-faith and reasonable argument.
Respectfully submitted,
___________________
[Name/Signature]
Date: ______________
Ref 1. References to me as googlebay
http://forums.whirlpool.net.au/forum-replies-archive.cfm/295459.html and at
http://www.talkgraphics.com/member.php?u=12293
http://rytsk.com/googlebay/fat-g-name-archive/index.html
Ref 5. googlebay.com.au year 2007 web statistics
More documents on this case may be viewed at http://rytsk.com/googlebay/case_history.html