DECISION

 

EOG Resources, Inc. v. Akinyemi Adegbola Sunday / G

Claim Number: FA1908001857175

 

PARTIES

Complainant is EOG Resources, Inc. (“Complainant”), represented by Brad Newberg of McGuireWoods LLP, Virginia, USA.  Respondent is Akinyemi Adegbola Sunday / G (“Respondent”), Nigeria.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <eogresources-us.com>, registered with OwnRegistrar, Inc..

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on August 13, 2019; the Forum received payment on August 13, 2019.

 

On August 16, 2019, OwnRegistrar, Inc. confirmed by e-mail to the Forum that the <eogresources-us.com> domain name is registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the name.  OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, Inc. 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 20, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 9, 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 postmaster@eogresources-us.com.  Also on August 20, 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.

 

Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.

 

On September 12, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch as Panelist.

 

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. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant operates in the crude oil and natural gas industries. Complainant has rights in the EOG RESOURCES mark based upon its registration of the mark with agencies around the world, including with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2,635,944, registered Oct. 15, 2002). See Compl. Ex. B. Respondent’s <eogresources-us.com> domain name is identical or confusingly similar to Complainant’s EOG RESOURCES mark because it wholly incorporates Complainant’s EOG RESOURCES mark, and merely adds a hyphen, the geographic term “us” and the “.com” generic top-level domain (“gTLD”).

2.    Respondent lacks rights or legitimate interests in the <eogresources-us.com> domain name. Respondent is not authorized or licensed to use Complainant’s EOG RESOURCES mark and there is no evidence to suggest that the Respondent listed in the WHOIS record is commonly known by the disputed domain name. See Compl Ex. A. Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use. Rather, Respondent’s disputed domain name resolves to Complainant’s own website. Furthermore, Respondent uses an email address associated with the disputed domain name to engage in a phishing scheme that targets prospective employees applying to Complainant’s business. See Compl. Ex. D.

3.    Respondent registered and uses the <eogresources-us.com> domain name in bad faith.  Respondent has a previous adverse UDRP decision against it relating the EOG RESOURCES mark. Respondent attempts to attract, for commercial gain, users to the disputed domain name where Respondent uses the disputed domain name to engage in a phishing scheme targeting prospective employees applying to Complainant’s business. See Compl. Ex. D. Respondent also registered the disputed domain name under a privacy service. Finally, Respondent had actual knowledge of Complainant’s EOG RESOURCES mark prior to registering the disputed domain name.

 

B.   Respondent

1.    Respondent did not submit a response.

 

FINDINGS

1.    Respondent’s <eogresources-us.com> domain name is confusingly similar to Complainant’s EOG RESOURCES mark.

2.    Respondent does not have any rights or legitimate interests in the

<eogresources-us.com> domain name.

3.    Respondent registered and used the <eogresources-us.com> domain name in bad faith.

 

DISCUSSION

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:

 

(1)  the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and

(2)  Respondent has no rights or legitimate interests in respect of the domain name; and

(3)  the domain name has been registered and is being used in bad faith.

 

In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.  The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).

 

Identical and/or Confusingly Similar

Complainant asserts rights in the EOG RESOURCES mark based upon registration with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in the mark pursuant to Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Here, Complainant provides registrations for its trademarks (e.g., Reg. No. 2,635,944, registered Oct. 15, 2002). See Compl. Ex. B. Therefore, the Panel finds Complainant has rights in the EOG RESOURCES mark per Policy ¶ 4(a)(i).

 

Next, Complainant argues Respondent’s <eogresources-us.com> domain name is identical or confusingly similar to Complainant’s EOG RESOURCES mark because it wholly incorporates Complainant’s EOG RESOURCES mark, and merely adds a hyphen, the geographic term “us” and the “.com” gTLD.  The addition of geographic terms, a hyphen and a gTLD to a complainant’s mark have been found insufficient to withstand a test of confusing similarity pursuant to Policy ¶ 4(a)(i). See Dell Inc. v. Suchada Phrasaeng, FA 1745812 (Forum Sep. 28, 2017) (“Adding geographical terms does not sufficiently distinguish a domain name from a mark to prevent a finding of confusingly similarity under a Policy ¶4(a)(i) analysis.”); see also Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum  July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark); Tupelo Honey Hospitality Corporation v. King, Reggie, FA 1732247 (Forum July 19, 2017) (“Addition of a gTLD is irrelevant where a mark has been fully incorporated into a domain name and the gTLD is the sole difference.”). Therefore, the Panel agrees with Complainant and find Respondent’s disputed domain name to be identical or confusingly similar to the Complainant’s EOG RESOUCES mark.

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).

 

Complainant argues that Respondent has no rights or legitimate interests in the <eogresources-us.com> domain name as Respondent is not authorized by Complainant to use the EOG RESOURCES mark and there is no evidence to suggest Respondent is commonly known by the disputed domain name. WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Additionally, lack of authorization to use a complainant’s mark may support a finding that the respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”). Complainant provides WHOIS information for Respondent indicating that Respondent is known as “Akinyemi Adegbola Sunday” and no information of the record indicates that Respondent was authorized to use the Complainant’s EOG RESOURCES mark. See Compl. Ex. A. Therefore, the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name under Policy ¶ 4(c)(ii).

 

Next, Complainant argues Respondent fails to use the <eogresources-us.com> domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use as Respondent’s domain name resolves to Complainant’s own website. Respondent’s use of a disputed domain name to resolve to a complainant’s website does not create any rights or legitimate interests in Respondent. See Priceline.com, Inc. v. Ryan G Foo/PPA Media Services, FA1607001684157, (Forum Aug. 18, 2016) (finding that Respondent used the disputed domain name to redirect to Complainant’s website was in violation of the affiliate agreement between Respondent and Complainant and that such use precluded Respondent from claiming a bona fide offering of goods or services or a legitimate noncommercial or fair use.); see also Better Existence with HIV v. AAA, FA 1363660 (Forum Jan. 25, 2011) (finding that “even though the disputed domain name still resolves to Complainant’s own website, Respondent’s registration of the disputed domain name in its own name fails to create any rights or legitimate interests in Respondent associated with the disputed domain name under Policy ¶ 4(a)(ii)”). The Panel determines Respondent fails to use the disputed domain name for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).

 

Furthermore, Complainant contends that Respondent’s lack of rights or legitimate interests in the <eogresources-us.com> domain name is indicated by Respondent’s use of an email address in furtherance of a phishing scheme. Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use. See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA1403001550388 (Forum May 5, 2014) (“Respondent is using the domain name in emails to various IT hardware suppliers in an attempt to impersonate Complainant and defraud its customers. The domain name also resolved to a website similar to Complainant's website. The Panel found that such actions precluded a bona fide offer or fair use.”). Here, Complainant provides an example of Respondent’s phishing emails in which Respondent appears to pass off as an employee of Complainant. See Compl. Ex. D. Therefore, the Panel finds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).

 

Registration and Use in Bad Faith

Complainant argues Respondent registered and uses the <eogresources-us.com> domain name in bad faith because Respondent has a previous adverse UDRP decision against it relating the EOG RESOURCES mark. Evidence that a respondent owned various domain names infringing on famous third-party marks and previous adverse UDRP decisions can evince bad faith registration under Policy ¶ 4(b)(ii). See Sanlam Life Insurance Limited v. Syed Hussain / Domain Management MIC, FA 1787219 (Forum June 15, 2018) (finding bad faith per Policy ¶ 4(b)(ii) where the complainant provided evidence the respondent owned various domain names infringing on famous third-party marks; and also that the respondent had been ordered to transfer domain names in previous UDRP decisions). Here, Complainant points to the relevant WHOIS information to show that Respondent (“Akinymi Abegbola Sunday”) has a similar name to a respondent in a prior case. See Compl. Ex. A. Complainant cites the UDRP decision in which Respondent was ordered to transfer the domain name (EOG Resources, Inc. v. Akinymi Adegbola Sunday Oshin, FA1836940 (Forum May 3, 2019). Therefore, the Panel finds that Respondent has engaged in a pattern of bad faith registrations per Policy ¶ 4(b)(ii).

 

Next, Complainant argues Respondent registered and uses the <eogresources-us.com> domain name in bad faith because Respondent attempts to attract, for commercial gain, users to the disputed domain name where Respondent uses the disputed domain name to engage in a phishing scheme targeting prospective employees applying to Complainant’s business. See Compl. Ex. D. Use of a disputed domain name to pass off as a complainant in furtherance of a phishing scheme is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use per Policy ¶ 4(b)(iv)). Complainant provides Respondent’s phishing emails attempting to pass off in furtherance of a phishing scheme. See Compl. Ex. D. Thus, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iv).

 

Finally, Complainant asserts that Respondent had actual and/or constructive knowledge of Complainant’s rights in the EOG RESOURCES mark as the result of Complainant’s extensive use of the mark predating the date on which respondent registered the <eogresources-us.com> domain name and Respondent’s use of the mark to engage in phishing via email. Although panels have generally not regarded constructive notice as sufficient for a finding of bad faith, actual knowledge of Complainant’s mark prior to registering is adequate to find bad faith under Policy ¶ 4(a)(iii). See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Use of a mark on a resolving webpage may demonstrate that a respondent had actual knowledge of a complainant’s rights in a mark at the time of registration, thus constituting bad faith. Finex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). Here, Complainant provides Respondent’s phishing emails attempting to pass off in furtherance of a phishing scheme to evince Respondent’s actual knowledge of Complainant’s rights in the EOG RESOURCES mark. See Compl. Ex. D. Thus, the Panel finds that Respondent had actual notice of Complainant’s rights in the EOG RESOURCES mark under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <eogresources-us.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch, Panelist

Dated:  September 25, 2019