Hess Corporation v. Ifeoma Uzoezie
Claim Number: FA0808001221409
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 <hessmarketers.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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 20, 2008; the National Arbitration Forum received a hard copy of the Complaint on August 21, 2008.
On August 21, 2008, Melbourne It, Ltd. d/b/a Internet Names Worldwide confirmed by e-mail to the National Arbitration Forum that the <hessmarketers.com> domain name is registered with Melbourne It, Ltd. d/b/a Internet Names Worldwide and that Respondent is the current registrant of the name. Melbourne It, Ltd. d/b/a Internet Names Worldwide has verified that Respondent is bound by the Melbourne It, Ltd. d/b/a Internet Names Worldwide 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 August 25, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 15, 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 postmaster@hessmarketers.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 23, 2008, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (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 <hessmarketers.com> domain name is confusingly similar to Complainant’s HESS mark.
2. Respondent does not have any rights or legitimate interests in the <hessmarketers.com> domain name.
3. Respondent registered and used the <hessmarketers.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hess Corporation, explores and produces oil and gas. Since 1920, Complainant has sought crude oil and natural gas worldwide for production in the global marketplace. Complainant has several trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the HESS mark, including Reg. No. 832,393 (issued July 25, 1967).
Respondent registered the disputed <hessmarketers.com> domain name on April 11, 2008, and is currently using the disputed domain name to host a website that features a search engine and unrelated third-party links.
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 sufficiently set forth evidence of its rights in the HESS mark through registration of the mark with the USPTO 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 Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
Respondent’s <hessmarketers.com>
domain name contains Complainant’s entire and unaltered HESS mark, while adding
the generic word “marketers” and the generic top-level domain “.com.” The Panel finds that neither addition
distinguishes the disputed domain name, in that the HESS mark remains the
dominant and unique element of the disputed domain name. As such, the Panel finds that the disputed
domain name is confusingly similar to the mark under Policy ¶ 4(a)(i). See
Reese v. Morgan, FA 917029 (Nat. Arb.
Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level
domain “.com” is insufficient to differentiate a disputed domain name from a
mark); see also Google Inc. v. Xtraplus
Corp., D2001-0125 (WIPO Apr. 16, 2001) (finding that the respondent’s
domain names were confusingly similar to Complainant’s GOOGLE mark where the
respondent merely added common terms such as “buy” or “gear” to the end).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant contends that Respondent lacks all rights and legitimate interests in the <hessmarketers.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 May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”).
Respondent has not submitted a response in this proceeding. Implicit in such is the fact that there is no evidence in the record to conclude or even suggest that Respondent is commonly known by the disputed domain name, or even has license or permission from Complainant to reflect Complainant’s mark in such a fashion. In fact, the WHOIS domain name registration information lists the registrant of the disputed domain names as “Ifeoma Uzoezie,” which fails to connote any resemblance between Respondent and the disputed domain name. The Panel therefore finds that Complainant lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Wells Fargo & Co. v. Onlyne Corp. Services11, Inc., FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information for the disputed domain [name], one can infer that Respondent, Onlyne Corporate Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”); 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 Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant alleges, and the Panel so finds, that Respondent
engaged in bad faith registration and use under Policy ¶ 4(b)(iv) by creating a
likelihood of confusion as to Complainant’s affiliation or endorsement of
Respondent’s website and disputed domain name for commercial gain. See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum
June 7, 2006) (holding that the registration and use of a domain name
confusingly similar to a complainant’s mark to direct Internet traffic to a
commercial “links page” in order to profit from click-through fees or other
revenue sources constitutes bad faith under Policy ¶ 4(b)(iv)); see also Reese v. Morgan, FA 917029 (Nat. Arb. Forum Apr. 5,
2007) (holding that the respondent was taking advantage of the confusing
similarity between the <lilpunk.com> domain name and the complainant’s
LIL PUNK mark by using the contested domain name to maintain a website with
various links to third-party websites unrelated to Complainant, and that such
use for the respondent’s own commercial gain demonstrated bad faith
registration and use pursuant to Policy ¶ 4(b)(iv)).
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 <hessmarketers.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 7, 2008
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