Chevron Intellectual Property LLC v. David Bigarel
Claim Number: FA0912001298006
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Bryce
J. Maynard, of Buchanan Ingersoll & Rooney PC,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <chevron-toy-cars.com>, registered with Godaddy.com, Inc.
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.
Judge Ralph Yachnin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On December 16, 2009, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of January 5, 2010 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@chevron-toy-cars.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <chevron-toy-cars.com> domain name is confusingly similar to Complainant’s CHEVRON mark.
2. Respondent does not have any rights or legitimate interests in the <chevron-toy-cars.com> domain name.
3. Respondent registered and used the <chevron-toy-cars.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Chevron
Intellectual Property LLC, holds multiple trademark registrations with the
United States Patent and Trademark Office (“USPTO”) for the CHEVRON mark (e.g., Reg. No. 364,683 issued
Respondent, David Bigarel,
registered the <chevron-toy-cars.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.
Respondent, David Bigarel, registered
the <chevron-toy-cars.com> domain
name on
Complainant argues that Respondent’s <chevron-toy-cars.com> domain name is confusingly
similar to Complainant’s CHEVRON mark pursuant to Policy ¶ 4(a)(i). Respondent’s disputed domain name is
confusingly similar to Complainant’s CHEVRON mark because Respondent’s disputed
domain name incorporates Complainant’s mark in its entirety, adds the descriptive
terms “toy” and “cars”, adds hyphens, and adds the generic top-level domain
(“gTLD”) “.com.” The Panel finds that
the addition of the generic terms “toy” and “cars,” which have an obvious
relationship to Complainant’s business, create a confusing similarity between
the disputed domain name and Complainant’s 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 Whitney Nat’l Bank v. Easynet Ltd, FA 944330
(Nat. Arb. Forum Apr. 30, 2007) (“The additions of generic words with an
obvious relationship to Complainant’s business and a gTLD renders the disputed
domain name confusingly similar to Complainant’s mark pursuant to Policy ¶
4(a)(i).”).
Additionally, the Panel finds that the addition of hyphens do not
distinguish between a domain name and a mark.
See Health Devices
Corp. v.
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Once Complainant makes a prima facie case in support of its allegations, the burden shifts to Respondent to prove it has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii). Based on arguments made in the Complaint, the Panel finds that Complainant has established a prima facie case in support of its contentions and Respondent has failed to submit a Response to these proceedings. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Nat. Arb. Forum Sept. 25, 2006) (finding that if the complainant satisfies its prima facie burden, “then the burden shifts to the respondent to show that it does have rights or legitimate interest in the subject domain names.”). Nevertheless, the Panel will examine the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by the disputed domain name and that Respondent has not been authorized or licensed by Complainant to use Complainant’s CHEVRON mark. Without evidence to the contrary, the Panel finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name); 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).
Respondent’s disputed domain name was registered on
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
The Panel finds that Respondent’s operation of the disputed
domain name to sell Complainant’s products and those in competition with
Complainant constitutes a disruption of Complainant’s business under Policy ¶
4(b)(iii). See DatingDirect.com
Ltd. v. Aston, FA 593977 (Nat. Arb. Forum
Respondent is attempting to profit by using Complainant’s
mark in the disputed domain name and attempting to attract Internet users to
Respondent’s website for Respondent’s financial gain. The Panel finds Respondent’s use of the
confusingly similar disputed domain name to attract Internet users and profit
by creating a strong likelihood of confusion with Complainant’s CHEVRON mark is
evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Fossil Inc. v. NAS, FA 92525 (Nat. Arb. Forum Feb. 23, 2000)
(finding that the respondent acted in bad faith by registering the
<fossilwatch.com> domain name and using it to sell various watch brands
where the respondent was not authorized to sell the complainant’s goods); see also Nokia Corp. v. Private, D2000-1271 (WIPO Nov. 3, 2000) (finding bad
faith registration and use pursuant to Policy ¶ 4(b)(iv) where the domain name
resolved to a website that offered similar products as those sold under the
complainant’s famous mark).
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 <chevron-toy-cars.com> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Ralph Yachnin, Panelist
Justice, Supreme Court, NY (Ret.)
Dated: January 27, 2010
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