Chevron Intellectual Property LLC v. Maryann Gingerelli
Claim Number: FA1307001509333
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Bruce A. McDonald of Buchanan Ingersoll & Rooney PC, Virginia, USA. Respondent is Maryann Gingerelli (“Respondent”), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chevr0n.com>, registered with GODADDY.COM, LLC.
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 July 11, 2013; the National Arbitration Forum received payment on July 11, 2013.
On July 17, 2013, GODADDY.COM, LLC confirmed by e-mail to the National Arbitration Forum that the <chevr0n.com> domain name is registered with GODADDY.COM, LLC and that Respondent is the current registrant of the name. GODADDY.COM, LLC has verified that Respondent is bound by the GODADDY.COM, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On July 18, 2013, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 7, 2013 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@chevr0n.com. Also on July 18, 2013, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 14, 2013, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. 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 <chevr0n.com> domain name is confusingly similar to Complainant’s CHEVRON mark.
2. Respondent does not have any rights or legitimate interests in the <chevr0n.com> domain name.
3. Respondent registered and uses the <chevr0n.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant owns the CHEVRON mark through its trademark registrations with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 364,683, registered February 14, 1939), used in the energy industry. Complainant also owns over 100 international trademark registrations for its CHEVRON mark, in addition to protection in 44 countries under the Madrid Protocol. Complainant uses the website at <chevron.com> as part of its online presence.
Respondent registered the disputed domain name on August 29, 2012, and fails to make an active use of the domain name.
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."
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.
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.”).
The Panel finds that Complainant has established rights in its CHEVRON mark through its many trademark registrations. See Metro. Life Ins. Co. v. Bonds, FA 873143 (Nat. Arb. Forum Feb. 16, 2007) (finding that a USPTO trademark registration adequately demonstrates a complainant’s rights in a mark under Policy ¶ 4(a)(i)); see also Morgan Stanley v. Fitz-James, FA 571918 (Nat. Arb. Forum Nov. 29, 2005) (finding from a preponderance of the evidence that the complainant had registered its mark with national trademark authorities, the Panel determined that “such registrations present a prima facie case of Complainant’s rights in the mark for purposes of Policy ¶ 4(a)(i).”).
Respondent’s <chevr0n.com> domain name is confusingly similar to Complainant’s CHEVRON mark as it merely substitutes the number “0” for the letter “o.” Complainant argues that the disputed domain name, when typed in capital letters, is nearly indistinguishable from the CHEVRON mark. Previous panels have held that the substitution of the number “0” for the letter “o” in a mark does not distinguish the disputed domain name from the mark. In Oxygen Media, LLC v. Primary Source, D2000-0362 (WIPO June 19, 2000), the panel found the domain name <0xygen.com> confusingly similar to complainant’s OXYGEN mark as “[t]he substitution of the digit zero for the letter ‘o’ appears calculated to trade on Complainant’s name by exploiting likely mistake by users when entering the url address.” The disputed domain name also differs from the mark in that the domain name includes the generic top-level domain (“gTLD”) “.com,” insignificant under Policy ¶ (4)(a)(i). See Daedong-USA, Inc. v. O’Bryan Implement Sales, FA 210302 (Nat. Arb. Forum Dec. 29, 2003) (“Respondent's domain name, <kioti.com>, is identical to Complainant's KIOTI mark because adding a top-level domain name is irrelevant for purposes of Policy ¶ 4(a)(i).”). Thus, thee Panel finds that <chevr0n.com> domain name is confusingly similar to Complainant’s CHEVRON mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. 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 UDRP ¶ 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) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent lacks rights or legitimate interests in the disputed domain name because Respondent is not known by the disputed domain name, nor has Complainant authorized Respondent’s use of the mark. The WHOIS record identifies “Maryann Gingerelli” as the registrant of the disputed domain name. The Panel thus finds that Respondent is not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii). See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark).
Complainant also argues that there is no evidence that Respondent has used the disputed domain name in connection with a bona fide offering of goods or services, or for any genuine noncommercial purpose. Complainant asserts that there is no website corresponding to the disputed domain name showing evidence of Respondent’s right or legitimate interest in the domain name. Thus the Panel finds that Respondent is not using the confusingly similar <chevr0n.com> domain name in connection with a bona fide offering of goods or services under Policy ¶ 4(c)(i) or for a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). 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’”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel notes that Policy ¶ 4(b) is intended to be illustrative, rather than exclusive. Previous panels have found additional circumstances that support a finding of bad faith. Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant asserts that there is no website corresponding to the disputed domain name; however Complainant has not provided evidence showing how Respondent uses the disputed domain name. Still, the Panel is persuaded by Complainant’s contention given Respondent’s apparent infringing use, and therefore, finds Respondent’s registration and use of the domain named to be bad faith pursuant to Policy ¶ 4(a)(iii). See Am. Broad. Cos., Inc. v. Sech, FA 893427 (Nat. Arb. Forum Feb. 28, 2007) (concluding that the respondent’s failure to make active use of its domain name in the three months after its registration indicated that the respondent registered the disputed domain name in bad faith).
Panels have consistently held that typosquatting is meant to take advantage of typographical errors, and is thus motivated by bad faith. 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).”). The Panel similarly finds Respondent’s typosquatting to be evidence of bad faith registration and use under Policy ¶ 4(a)(iii).
Complainant further argues that the registration of a well-known trademark as a domain name is a clear indication of bad faith in itself. The Panel agrees and infers that Respondent had actual knowledge of Complainant's mark, given the fame of Complainant’s mark, and the intentional misspelling of Complainant’s mark. See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Nat. Arb. Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name").
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chevr0n.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: August 24, 2013
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