Hess Corporation v. John Doe
Claim Number: FA0805001191921
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 <hessoil-uk.com>, registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide.
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.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
3, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 23, 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 the 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 <hessoil-uk.com> domain name is confusingly similar to Complainant’s HESS mark.
2. Respondent does not have any rights or legitimate interests in the <hessoil-uk.com> domain name.
3. Respondent registered and used the <hessoil-uk.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hess Corporation, is an integrated oil and gas
company with its headquarters in
Respondent registered the disputed domain name on October 29, 2007. The <hessoil-uk.com> domain name currently hosts a non-active website.
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 U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning.”); see also 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.”).
Complainant contends that Respondent’s <hessoil-uk.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 term
“oil” which has an obvious relationship to Complainant’s business, and “
The Panel also finds the addition of the geographic term “
Therefore, pursuant to Policy ¶ 4(a)(i), Respondent’s disputed domain name is confusingly similar to Complainant’s mark. Thus, the Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <hessoil-uk.com> domain name. Once Complainant makes a prima facie case in support of its allegations, the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Because of the Respondent’s failure to respond to the Complaint, the Panel assumes that Respondent does not have rights or legitimate interests in the disputed domain names. G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where the complainant has asserted that respondent does not have rights or legitimate interests with respect to the domain name, it is incumbent on respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests pursuant to Policy ¶ 4(c).
Complainant contends that Respondent is neither commonly
known by the <hessoil-uk.com> domain name, nor licensed to register domain names using the registered
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
Based on the evidence in the record, the Panel finds that Complainant has made a prima facie case under Policy ¶ 4(a)(ii) which is not refuted by the evidence in the record. Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent has failed to make an active use of the <hessoil-uk.com> domain name, 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 S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s inactive use of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that merely holding an infringing domain name without active use can constitute use in bad faith); see also Cruzeiro Licenciamentos Ltda. v. Sallen, D2000-0715 (WIPO Sept. 6, 2000) (“Mere inactive use of a domain name can qualify as bad faith if the domain name owner’s conduct creates the impression that the name is for sale.”).
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 <hessoil-uk.com> domain name be TRANSFERRED from Respondent to Complainant.
Dated: July 16, 2008
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National Arbitration Forum
Complainant apparently concedes that the putative registrant of the domain name
is not in fact the registrant of the <hessoil-uk.com> domain name and that the
actual registrant of the disputed domain name is unknown. Under the circumstances it is appropriate for
the Panel to protect the Respondent’s name from being tarnished and to redact
Respondent’s personal information. E.g., Wells
Fargo & Co. v. John Doe as Holder of Domain Name <wellzfargo.com>,
FA 362108 (Nat. Arb. Forum