Chevron Intellectual Property LLC v. Web Advertising, Corp.
Claim Number: FA0709001080707
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Fred
W. Hathaway, of Buchanan Ingersoll & Rooney PC, 1737
King Street Suite 500, Alexandria, VA 22314. Respondent is Web Advertising, Corp. (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <chevromtexacocards.com>, registered with Belgiumdomains, Llc.
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.
Honorable Karl V. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 20, 2007; the National Arbitration Forum received a hard copy of the Complaint on September 20, 2007.
On September 20, 2007, Belgiumdomains, Llc confirmed by e-mail to the National Arbitration Forum that the <chevromtexacocards.com> domain name is registered with Belgiumdomains, Llc and that Respondent is the current registrant of the name. Belgiumdomains, Llc has verified that Respondent is bound by the Belgiumdomains, Llc registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On September 25, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of October 15, 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 postmaster@chevromtexacocards.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On October 18, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Honorable Karl V. Fink (Ret.) as Panelist.
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 <chevromtexacocards.com> domain is confusingly similar to Complainant’s CHEVRONTEXACO mark.
2. Respondent does not have any rights or legitimate interests in the <chevromtexacocards.com> domain name.
3. Respondent registered and used the <chevromtexacocards.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Chevron Intellectual Property LLC, offers wide range of products and services including gasoline, lubricants, operating service stations, lubrication services and credit card services. In furtherance of its commercial interests, Complainant has registered several trade and service marks with the United States Patent and Trademark Office (“USPTO”) including the CHEVRONTEXACO mark (Reg. No. 2,729,246 issued June 24, 2003).
Respondent registered the <chevromtexacocards.com> domain name on October 17, 2005. The disputed domain name resolves to a website that displays links for websites advertising and selling credit card services and related financial services.
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 asserts rights in the CHEVRONTEXACO mark through registration of the mark with the USPTO. The Panel finds that Complainant’s USPTO registration of the CHEVRONTEXACO mark sufficiently establishes rights in the mark pursuant to Policy ¶ 4(a)(i). See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Ameridream, Inc. v. Russell, FA 677782 (Nat. Arb. Forum May 24, 2006) (holding that the complainant’s registration of the AMERIDREAM mark with the USPTO established its rights in the mark pursuant to Policy ¶ 4(a)(i)).
Respondent’s <chevromtexacocards.com> domain name contains a misspelled version of Complainant’s CHEVRONTEXACO mark and the generic top-level domain (“gTLD”) “.com.” The disputed domain name merely replaces the letter “n” in Complainant’s protected mark with the letter “m.” Additionally, the disputed domain name adds the generic word “cards” to the end of Complainant’s mark, which has an obvious relationship to the credit card services offered by Complainant under its mark. The Panel finds that Respondent’s use of a typographical version of Complainant’s protected mark, the addition of the term “cards,” and the addition of a gTLD fails to sufficiently distinguish the domain name from the mark pursuant to Policy ¶ 4(a)(i). See Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar); see also Toronto-Dominion Bank v. Karpachev, D2000-1571 (WIPO Jan. 15, 2001) (finding that the domain names <tdwatergouse.com> and <dwaterhouse.com> are virtually identical to the complainant’s TD WATERHOUSE name and mark); see also Brown & Bigelow, Inc. v. Rodela, FA 96466 (Nat. Arb. Forum Mar. 5, 2001) (finding that the <hoylecasino.net> domain name is confusingly similar to the complainant’s HOYLE mark, and that the addition of “casino,” a generic word describing the type of business in which the complainant is engaged, does not take the disputed domain name out of the realm of confusing similarity).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
In instances where Complainant has made a prima facie case in support of its
allegations, the burden shifts to Respondent to set forth concrete evidence
indicating that it has rights or legitimate interests in accordance with Policy
¶ 4(a)(ii). See
SEMCO Prods., LLC v. dmg world media (
Complainant alleges that Respondent, through the use of a typographical version of Complainant’s mark in its disputed domain name, is engaging in a technique called “typosquatting.” The Panel finds that Respondent is engaging in typosquatting, which evinces a lack of rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See IndyMac Bank F.S.B. v. Ebeyer, FA 175292 (Nat. Arb. Forum Sept. 19, 2003) (finding that the respondent lacked rights and legitimate interests in the disputed domain names because it “engaged in the practice of typosquatting by taking advantage of Internet users who attempt to access Complainant's <indymac.com> website but mistakenly misspell Complainant's mark by typing the letter ‘x’ instead of the letter ‘c’”); see also LTD Commodities LLC v. Party Night, Inc., FA 165155 (Nat. Arb. Forum Aug. 14, 2003) (finding that the <ltdcommadities.com>, <ltdcommmodities.com>, and <ltdcommodaties.com> domain names were intentional misspellings of Complainant's LTD COMMODITIES mark and this “‘typosquatting’ is evidence that Respondent lacks rights or legitimate interests in the disputed domain names”).
The <chevromtexacocards.com> domain name resolves to a website offering links to commercial websites, some of which appear to offer products and services in direct competition with the credit card services offered by Complainant. As such, the Panel finds that Respondent’s use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Charles Letts & Co. v. Citipublications, FA 692150 (Nat. Arb. Forum July 17, 2006) (finding that the respondent’s use of a domain name that was confusingly similar to the complainant’s mark to display links to the complainant’s competitors did not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Expedia, Inc. v. Compaid, FA 520654 (Nat. Arb. Forum Aug. 30, 2005) (finding that the respondent’s use of the <expediate.com> domain name to redirect Internet users to a website featuring links to travel services that competed with the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)).
Complainant asserts that it has neither authorized nor licensed Respondent in any way to use or exploit Complainant’s CHEVRONTEXACO mark. Respondent’s WHOIS information reveals that the registrant of the <chevromtexacocards.com> domain name is “Web Advertising, Corp.” Further, Respondent has failed to proffer any evidence suggesting that it is commonly known by the disputed domain name. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name in accordance with Policy ¶ 4(c)(ii). See Instron Corp. v. Kaner, FA 768859 (Nat. Arb. Forum Sept. 21, 2006) (finding that the respondent is not commonly known by the <shoredurometer.com> or <shoredurometers.com> domain names where the WHOIS information indicates the registrant of the domain names as “Andrew Kaner c/o Electromatic a/k/a Electromatic Equip’t,” and no other evidence suggests that the respondent is commonly known by the domain names); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5, 2007) (concluding that the respondent was not commonly known by the <lilpunk.com> domain name as there was no evidence in the record showing that the respondent was commonly known by that domain name, including the WHOIS information as well as the complainant’s assertion that it did not authorize or license the respondent’s use of its mark in a domain name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant asserts that Respondent is engaging in typosquattting, through its use of a typographically similar domain name to attract customers to its own website for commercial gain. The disputed domain name replaces the letter “n” in Complainant’s mark with the letter “m,” a letter that is adjacent to the letter “n” on a standard computer keyboard. The Panel finds that Respondent’s use amounts to typosquatting, which evinces registration and use in bad faith pursuant to Policy ¶ 4(a)(iii). See Zone Labs, Inc. v. Zuccarini, FA 190613 (Nat. Arb. Forum Oct. 15, 2003) (“Respondent’s registration and use of [the <zonelarm.com> domain name] that capitalizes on the typographical error of an Internet user is considered typosquatting. Typosquatting, itself is evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”); see also K.R. USA, INC. v. SO SO DOMAINS, FA 180624 (Nat. Arb. Forum Sept. 18, 2003) (finding that the respondent’s registration and use of the <philadelphiaenquirer.com> and <tallahassedemocrat.com> domain names capitalized on the typographical error of Internet users seeking the complainant's THE PHILADELPHIA INQUIRER and TALLAHASSEE DEMOCRAT marks, evincing typosquatting and bad faith pursuant to Policy ¶ 4(a)(iii)).
Respondent’s <chevromtexacocards.com>
domain name resolves to a website featuring links to competitor’s
websites. Such use is a disruption of
Complainant’s business, and the Panel finds that Respondent has registered and
used the domain name in bad faith pursuant to Policy ¶ 4(b)(iii). See Tesco Pers. Fin. Ltd. v. Domain Mgmt. Services, FA 877982 (Nat.
Arb. Forum Feb. 13, 2007) (concluding that the use of a confusingly
similar domain name to attract Internet users to a website containing commercial
links to the websites of the complainant’s competitors represented bad faith
registration and use under Policy ¶ 4(b)(iii)); see also Persohn v. Lim, FA 874447 (Nat.
Arb. Forum Feb. 19, 2007) (finding bad faith registration and use pursuant to Policy
¶ 4(b)(iii) where a respondent used the disputed domain name to operate a
commercial search engine with links to the complainant’s competitors).
Presumably, Respondent enjoys financial remuneration from its diversionary use of the <chevromtexacocards.com> domain name through the procurement of click-through advertising fees. Therefore, the Panel finds that Respondent’s use evinces an attraction for commercial gain and is illustrative of registration and use in bad faith pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Nat. Arb. Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting from click-through fees); see also AltaVista Co. v. Krotov, D2000-1091 (WIPO Oct. 25, 2000) (finding bad faith under Policy ¶ 4(b)(iv) where the respondent’s domain name resolved to a website that offered links to third-party websites that offered services similar to the complainant’s services and merely took advantage of Internet user mistakes).
The Panel finds that Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chevromtexacocards.com> domain name be TRANSFERRED from Respondent to Complainant.
Honorable Karl V. Fink (Ret.), Panelist
Dated: October 30, 2007
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