Hess Corporation v. Dafcom IT Solutions c/o Ogbonnaya Ukwa
Claim Number: FA0804001175302
Complainant is Hess Corporation (“Complainant”), represented by Paul
J. Reilly, of Baker Botts L.L.P.,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hess-oil-company.com>, registered with Direct Information Pvt Ltd d/b/a Publicdomainregistry.com.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
15, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
May 5, 2008
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 firstname.lastname@example.org 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 <hess-oil-company.com> domain name is confusingly similar to Complainant’s HESS mark.
2. Respondent does not have any rights or legitimate interests in the <hess-oil-company.com> domain name.
3. Respondent registered and used the <hess-oil-company.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hess Corporation, is a leading producer of oil
and gas. Since 1920, Complainant has
explored the world in search of crude oil and natural gas for production into
the global marketplace. Complainant owns
several trademark registrations with the United States Patent and Trademark
Office (“USPTO”) for the HESS mark (i.e. Reg. No. 832,393 issued
Respondent registered the <hess-oil-company.com> domain name 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.
The Panel finds that Complainant has established rights in
the HESS mark for purposes of Policy ¶ 4(a)(i) through its trademark
registration with the USPTO. See Men’s Wearhouse, Inc. v. Wick,
FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under
Complainant contends that Respondent’s <hess-oil-company.com> domain name is confusingly
similar to Complainant’s HESS mark.
Respondent’s disputed domain name includes Complainant’s mark in its
entirety, adds the terms “oil” and “company” which have an obvious relationship
to Complainant’s business, adds hyphens, and adds the generic top-level domain
(“gTLD”) “.com.” The Panel finds that
the addition of terms with an obvious relationship to Complainant’s business
fails to create a distinctiveness required under Policy ¶ 4(a)(i) in order to defeat
a claim of a disputed domain name being confusingly similar to a mark. See
Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22,
2000) (finding confusing similarity where the respondent’s domain name combines
the complainant’s mark with a generic term that has an obvious relationship to
the complainant’s business); see also
Christie’s Inc. v. Tiffany’s Jewelry Auction, Inc., D2001-0075 (WIPO
Mar. 6, 2001) (finding that the domain name
<christiesauction.com> is confusingly similar to the complainant's
mark since it merely adds the word “auction” used in its generic sense). In addition, the Panel finds that the
addition of hyphens and a gTLD are irrelevant in distinguishing a disputed
domain name from a mark. See Busy Body, Inc. v. Fitness Outlet
Inc., D2000-0127 (WIPO Apr. 22, 2000) ("[T]he addition of the generic
top-level domain (gTLD) name ‘.com’ is . . . without legal
significance since use of a gTLD is required of domain name registrants . . .
."); see also Health Devices
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and
legitimate interests in the <hess-oil-company.com>
domain name. Under Policy ¶
4(a)(ii), after the complainant makes a prima
facie case against the respondent, the respondent then has the burden of
showing evidence that it does have rights and legitimate interests in the
disputed domain name. The Panel finds
that Complainant has made a prima facie
case under Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres
Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO
Due to Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain name. See Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“Given Respondent’s failure to submit a substantive answer in a timely fashion, the Panel accepts as true all of the allegations of the complaint.”); see also Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint). However, the Panel chooses to examine the evidence for applicable Policy ¶ 4(c) elements before making a final determination with regards to Respondent’s rights and legitimate interests.
Complainant contends that Respondent is neither commonly
known by the <hess-oil-company.com> domain name, nor licensed
to register domain names using the regstistered HESS mark. Respondent’s WHOIS information fails to
provide any affirmative evidence that Respondent is commonly known by the
disputed domain name. Therefore,
pursuant to Policy ¶ 4(c)(ii), the Panel finds that Respondent lacks rights and
legitimate interests in the disputed domain name. See
Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum
In addition, Respondent is sending e-mails to individuals in an effort to obtain personal information, which is an activity known as phishing. See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“‘Phishing’ involves the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit cards, passwords, social security numbers and other personal information to the ‘phishers’ who intend to use such information for fraudulent purposes.”). The Panel finds that using a disputed domain name as a host for a phishing scheme is neither a bona fide offering of products and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent has failed to make an
active use of the <hess-oil-company.com>
and it currently leads to a website displaying that site is under construction. The Panel finds that this inactive use of the
disputed domain name is evidence of registration and use in bad faith pursuant
to Policy ¶ 4(a)(iii). See DCI
In addition, the Panel finds that Respondent’s phishing
activities in order to fraudulently obtain personal information is further
evidence of bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See
Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum
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 <hess-oil-company.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: May 26, 2008
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