Exxon Mobil Corporation v. Property Management Professional
Claim Number: FA0708001059655
Complainant is Exxon Mobil Corporation (“Complainant”), represented by Stephen
P. Meleen, of Pirkey Barber LLP,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <exxon.biz>, registered with Blue Razor Domains, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Honorable Paul A. Dorf (Ret.) as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On August 16, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 5, 2007 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to email@example.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <exxon.biz> domain name is identical to Complainant’s EXXON mark.
2. Respondent does not have any rights or legitimate interests in the <exxon.biz> domain name.
3. Respondent registered and used the <exxon.biz> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Exxon Mobile Corporation, has continuously used
the EXXON mark since 1967in connection with a variety of goods and services
related to energy, petroleum and chemical products and research, and credit
card and convenience store services.
Complainant has registered the mark in numerous jurisdictions worldwide,
including in the
domain name was registered on
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."
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
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.
Complainant has sufficiently established its rights under
Policy ¶ 4(a)(i) in the EXXON mark through
registration with the USPTO and in the
domain name features Complainant’s EXXON mark in its entirety and includes the
generic top level domain (“gTLD”) “.biz.”
It is well established that a gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis.
Consequently, the Panel finds that the disputed domain name is identical
to Complainant’s mark under Policy ¶ 4(a)(i). See Isleworth Land Co.
v. Lost in Space, SA, FA 117330 (Nat. Arb. Forum Sept. 27, 2002) (“[I]t
is a well established principle that generic top-level domains are irrelevant
when conducting a Policy ¶ 4(a)(i) analysis.”); see also Nev. State Bank v.
Modern Ltd. – Cayman Web Dev., FA 204063 (Nat. Arb. Forum
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii),
Complainant must initially make out a prima
facie case that Respondent has no rights and legitimate interests in the
domain name at issue. See VeriSign Inc. Vene Sign,
Respondent has failed to submit a response to the Complaint. The Panel thus presumes that Respondent has no rights or legitimate interests in the <exxon.biz> domain name, but will still consider all available evidence with respect to the factors listed in Policy ¶ 4(c) before making this determination. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”).
Nowhere in Respondent’s WHOIS information does it indicate that Respondent is commonly known by the <exxon.biz> domain name. There is also no other information in the record to indicate that Respondent is or ever has been known by the disputed domain name. Further, Respondent has not sought, nor has Complainant granted, a license or permission to use Complainant’s mark in any way. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Gallup, Inc. v. Amish Country Store, FA 96209 (Nat. Arb. Forum Jan. 23, 2001) (finding that the respondent does not have rights in a domain name when the respondent is not known by the mark); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where the respondent was not commonly known by the mark and never applied for a license or permission from the complainant to use the trademarked name).
The <exxon.biz> domain name is identical to Complainant’s EXXON mark and the Respondent features no business of its own on the disputed domain name. Moreover, because the website that resolves from the <exxon.biz> domain name has previously diverted and now displays links to competitors of Complainant, the Panel presumes Complainant is financially benefiting from such use. The Panel finds that such use does not constitute a bona fide offering of goods or service or a noncommercial or fair use of the disputed domain name pursuant to Policy ¶¶ 4(c)(i) and (iii) respectively. See eBay Inc. v. Hong, D2000-1633 (WIPO Jan. 18, 2001) (stating that the respondent’s use of the complainant’s entire mark in domain names makes it difficult to infer a legitimate use); see also Wells Fargo & Co. v. Lin Shun Shing, FA 205699 (Nat. Arb. Forum Dec. 8, 2003) (finding that using a domain name to direct Internet traffic to a website featuring pop-up advertisements and links to various third-party websites is neither 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) because the registrant presumably receives compensation for each misdirected Internet user).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent emailed Complainant in early 2006 claiming ownership of the <exxon.biz> domain name and inquiring about its transfer. Complainant immediately requested Respondent transfer the disputed domain whereupon Respondent demanded the sum of $1,000 to complete the transfer. The Panel finds that Respondent’s offer to sell the disputed domain name for an amount that exceeds its out-of-pocket expenses evidences that Respondent registered and is using the <exxon.biz> domain name in bad faith pursuant to Policy ¶ 4(b)(i). See Dynojet Research, Inc. v. Norman, AF-0316 (eResolution Sept. 26, 2000) (finding that the respondent demonstrated bad faith when he requested monetary compensation beyond out-of-pocket costs in exchange for the registered domain name); see also Prudential Ins. Co. of Am. v. TPB Fin., FA 105218 (Nat. Arb. Forum Apr. 8, 2002) (finding bad faith registration and use pursuant to Policy ¶ 4(b)(i) where the respondent offered to sell the domain name for $900).
Until recently, the disputed domain name redirected traffic
to competitors of Complainant.
Currently, the website that resolves from the <exxon.biz>
domain name features links to other websites that advertise and/or offer goods
and services in competition with those offered under Complainant’s EXXON
mark. The Panel finds this to be
additional evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Disney
Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum
The website that resolves from the disputed domain name currently displays links to third-party websites that advertise and/or offer goods and services in competition with Complainant’s business. This is presumed to financially benefit Respondent through the use of click-through-fees. As such, the Panel finds further evidence of Respondent’s bad faith pursuant to Policy ¶ 4(b)(iv). See Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”); see also Kmart v. Khan, FA 127708 (Nat. Arb. Forum Nov. 22, 2002) (finding that if the respondent profits from its diversionary use of the complainant's mark when the domain name resolves to commercial websites and the respondent fails to contest the complaint, it may be concluded that the respondent is using the domain name in bad faith pursuant to Policy ¶ 4(b)(iv)).
The Panel concludes that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <exxon.biz> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Paul A Dorf (Ret.), Panelist
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