Chevron Intellectual Property LLC v. Katja Fyock / Boshes Minerva / Gerald Devore / Mary Troxler / Rachela Brouse / Katherine A Tanner
Claim Number: FA1907001854119
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Fred W. Hathaway of DICKINSON WRIGHT PLLC, Washington DC, USA. Respondent is Katja Fyock / Boshes Minerva / Gerald Devore / Mary Troxler / Rachela Brouse / Katherine A Tanner (“Respondent”), represented by James Andrew Yelton of Bailey, Womble & Yelton, Virginia, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <chevroncareer.org>, <chevroncareers.org>, <chevronhr.org>, <chevronhrs.org>, <chevronwork.org> and <chevronworks.org>, all of which are registered with Google LLC.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 26, 2019; the Forum received payment on July 26, 2019.
On July 29, 2019, Google LLC confirmed by e-mail to the Forum that the <chevroncareer.org>, <chevroncareers.org>, <chevronhr.org>, <chevronhrs.org>, <chevronwork.org>, and <chevronworks.org> domain names are registered with Google LLC and that Respondent is the current registrant of the names. Google LLC has verified that Respondent is bound by the Google LLC 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 August 6, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 26, 2019 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 the attention of postmaster@chevroncareer.org, postmaster@chevroncareers.org, postmaster@chevronhr.org, postmaster@chevronhrs.org, postmaster@chevronwork.org, and postmaster@chevronworks.org. Also, on August 6, 2019, 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.
A timely Response was received and determined to be complete on August 9, 2019.
On August 16, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” Complainant alleges that the entities controlling the domain names at issue are the same person or entity, which is operating under several aliases. Complainant therefore requests that all six domain name registrants be treated in this proceeding for all purposes as a single Respondent. In support of this request, Complainant asserts the following:
(1) the identified name, job title, and company of the fictional person who is alleged to be sending emails from all six domain names are all identical (“Mr. Paul Smith Senior Human Resources Manager” at Chevron);
(2) the disputed domain names have identical structure and theme that relates to working at Chevron;
(3) several emails associated with the disputed domain names are identical to each other;
(4) emails sent to various recipients frequently contain the same attachments;
(5) the emails use similar, if not identical, subsets of the same small number of email addresses (e.g., @hr____, @contact___);
(6) all six Respondent emails have the exact arbitrary structure of (i) a word, (ii) a few numbers, (iii) the word always leading and the numbers following, and (iv) all are Gmail accounts;
(7) the disputed domain names are all registered with Google, Inc.;
(8) all the disputed domain names were registered within four months of each other and the pairs only vary by the letter “s;” and
(9) of the six domain names, three are housed together on one server while the other three are hosted together on another server.
Because it appears from the asserted facts that they cannot be explained by reference to mere coincidence, the Panel determines that the request must be granted. Accordingly, this Decision will refer to the collective of identified respondents throughout as a single Respondent.
A. Complainant
Complainant is one of the world’s leading integrated energy companies, with a global workforce of over 40,000 employees.
Complainant holds a registration for the CHEVRON service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 4,297,878, registered March 5, 2013.
Respondent registered the domain names listed below on the dates indicated:
|
<chevroncareer.org> |
December 9, 2018 |
|
<chevroncareers.org |
December 6, 2018 |
|
<chevronhr.org> |
January 24, 2019 |
|
<chevronhrs.org |
January 27, 2019 |
|
<chevronwork.org> |
April 9, 2019 |
|
<chevronworks.org> |
April 10, 2019 |
The domain names are confusing similar to Complainant’s CHEVRON mark.
Respondent has not been commonly known by any of the domain names.
Respondent is not employed by or affiliated with Complainant, nor is Respondent authorized by Complainant to carry out business under the CHEVRON mark.
Respondent fails to make a bona fide offering of goods or services by means of the domain names or a legitimate non-commercial or fair use of them.
Respondent does not have rights to or legitimate interests in the domain names.
Respondent’s use of the domain names disrupts Complainant’s business.
Respondent knew of Complainant’s rights in the CHEVRON mark when it registered the domain names.
Respondent registered and uses the domain names in bad faith.
B. Respondent
One of the domain name registrants identified in the Complaint has filed a Response to it which denies generally all of the allegations of the Complaint.
(1) the domain names registered by Respondent are confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain names; and
(3) the domain names were registered and are being used by Respondent in bad faith.
Paragraph 15(a) of the Rules instructs this Panel to "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 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
Complainant has rights in the CHEVRON service mark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See Liberty Global Logistics, LLC v. damilola emmanuel / tovary services limited, FA 1738536 (Forum August 4, 2017):
Registration of a mark with the USPTO sufficiently establishes the required rights in the mark for purposes of the Policy.
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that each of Respondent’s domain names, <chevroncareer.org>, <chevroncareers.org>, <chevronwork.org>, <chevronworks.org>, <chevronhr.org> and <chevronhrs.org>, is confusing similar to Complainant’s CHEVRON service mark. Each of the domain names contains the mark in its entirety, with only the addition of one of the generic terms “work(s)” or “career(s)” or “hr(s),” all of which can be taken to relate to the concept of employment with Complainant, plus the generic Top Level Domain (“gTLD”) “.org.” These alterations of the mark, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy.
See, for example, Florists’ Transworld Delivery v. Malek, FA 676433 (Forum June 6, 2006) (finding the domain name <ftdflowers4less.com> to be confusingly similar to a UDRP complainant’s FTD mark). See also Space Imaging LLC v. Brownell, AF-0298 (eResolution September 22, 2000) (finding confusing similarity where a respondent’s domain name combined a UDRP complainant’s mark with a generic term that had an obvious relationship to that complainant’s business). Further see Brambles Indus. Ltd. v. Geelong Car Co. Pty. Ltd., D2000-1153 (WIPO Oct. 17, 2000) (finding the domain name <bramblesequipment.com> confusingly similar to a competing mark because the combination of the words "brambles" and "equipment" in the domain name falsely implied an association with a UDRP complainant’s business).
And, on the point of the effect of adding a gTLD to the mark of another in creating a domain name, see Dell Inc. v. Protection of Private Person, FA 1681432 (Forum August 1, 2016):
A TLD … is disregarded under a Policy ¶ 4(a)(i) analysis because domain name syntax requires TLDs.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the <chevroncareer.org>, <chevroncareers.org>, <chevronwork.org>, <chevronworks.org>, <chevronhr.org> and <chevronhrs.org> domain names, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <chevroncareer.org>, <chevroncareers.org>, <chevronwork.org>, <chevronworks.org>, <chevronhr.org> and <chevronhrs.org> domain names, that Respondent is not employed by or affiliated with Complainant, and that Respondent has not been authorized by Complainant to carry out business under the CHEVRON mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as one or another of the names “Katja Fyock / Boshes Minerva / Gerald Devore / Mary Troxler / Rachela Brouse / and Katherine A Tanner,” none of which resembles any of the domain names. On this record, we conclude that Respondent has not been commonly known by the disputed domain names so as to have acquired rights to or legitimate interests in them within the ambit of Policy ¶4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner). See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts that Respondent uses the domain names <chevroncareer.org>, <chevroncareers.org>, <chevronwork.org>, <chevronworks.org>, <chevronhr.org> and <chevronhrs.org> to direct email messages to unsuspecting Internet users seeking employment with Complainant, which messages solicit them to provide to Respondent their sensitive personal and financial information, from the exploitation of which Respondent seeks to profit illicitly. This employment is neither a bona fide offering of goods or services by means of the domain names under Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use of them under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain names as provided in those subsections of the Policy. See, for example, Microsoft Corporation v. Terrence Green / Whois Agent, FA 1661030 (Forum April 4, 2016) (finding that a respondent’s use of domain names that were confusingly similar to the mark of a UDRP complainant to send fraudulent emails purporting to be from agents of that complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of the domain name under Policy ¶ 4(c)(iii)).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶4(a)(ii).
We are convinced by the evidence that Respondent’s employment of the <chevroncareer.org>, <chevroncareers.org>, <chevronwork.org> <chevronworks.org>, <chevronhr.org> and <chevronhrs.org> domain names as alleged in the Complaint disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this demonstrates Respondent’s bad faith in registering and using the domain names. See The Hackett Group, Inc. v. Brian Herns/The Hackett Group, FA 1597465 (Forum February 6, 2015) (finding, under Policy ¶ 4(b)(iii), that the use of email messages associated with a domain name to send fraudulent communications to Internet users evidenced disruption of a UDRP complainant’s business and thus bad faith registration and use of the domain name).
We are also persuaded by the evidence that Respondent’s use of the domain names <chevroncareer.org>, <chevroncareers.org>, <chevronwork.org> <chevronworks.org>, <chevronhr.org> and <chevronhrs.org>, which we have found to be confusingly similar to Complainant’s CHEVRON service mark, is an attempt by Respondent to profit illicitly from the confusion thus caused among Internet users as to the possibility of Complainant’s association with the domain names. Under Policy ¶ 4(b)(iv), such a fraudulent scheme, commonly known as “phishing,” stands as further proof of Respondent’s bad faith in registering and using the domain names. See, for example, Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding, under Policy ¶ 4(b)(iv), that for a respondent to use a disputed domain name to pass itself off as a UDRP complainant in a phishing scheme was probative of bad faith registration and use of the domain name).
Finally, under this head of the Policy, it is plain from the record that Respondent knew of Complainant and its rights in the CHEVRON mark when it registered the challenged domain names. This too illustrates Respondent’s bad faith in registering them. See, for example, Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum February 6, 2014):
The Panel … here finds actual knowledge [and therefore bad faith registration of a domain name] through the name used for the domain and the use made of it.
See also Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018):
[T]he fact [that] Respondent registered a domain name that looked identical to the … mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of [its domain name] registration.
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that each of the domain names <chevroncareer.org>, <chevroncareers.org>, <chevronwork.org>, <chevronworks.org>, <chevronhr.org> and <chevronhrs.org> be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: August 27, 2019
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