Fluor Corporation v. BORIS CHEVKOV / JONES SMITH
Claim Number: FA1405001561134
Complainant is Fluor Corporation (“Complainant”), represented by Sara Freixa of CSC Digital Brand Services, Delaware, USA. Respondent is BORIS CHEVKOV / JONES SMITH (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <fluor-texas.com> and <fluor-tx.com>, registered with ENOM, INC.
The undersigned certifies that she has acted independently and impartially and that to the best of her knowledge, she has no known conflict in serving as Panelist in this proceeding. Hon. Carolyn Marks Johnson sits as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically May 23, 2014; the National Arbitration Forum received payment May 23, 2014.
On May 28, 2014, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <fluor-texas.com> and <fluor-tx.com> domain names are registered with ENOM, INC. and that Respondent is the current registrant of the names. ENOM, INC. verified that Respondent is bound by the ENOM, INC. registration agreement and thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On June 2, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 23, 2014, 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@fluor-texas.com, postmaster@fluor-tx.com. Also on June 2, 2014, 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 June 27, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Hon. Carolyn Marks Johnson to sit as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration Forum 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 names be transferred from Respondent to Complainant.
i. Complainant, Fluor Corporation, develops and implements innovative solutions for complex capital projects to diverse clients and industries, including chemicals and petrochemicals, commercial and institutional, government services, life sciences, manufacturing, mining, oil and gas, power, renewable energy, telecommunications, and transportation infrastructure.
ii. Complainant is the owner of trademark registrations with the United States Patent and Trademark Office (“USPTO”) for the FLUOR mark (e.g., Reg. No. 591,442, registered June 15, 1954).
iii. Respondent’s <fluor-texas.com> and <fluor-tx.com> domainnames are confusingly similar to Complainant’s FLUOR mark.
a. Policy ¶ 4(a)(ii)
i. Respondent has no rights to or legitimate interests in respect of the disputed domain names.
ii. Respondent has not been commonly known by the disputed domain names.
iii. Respondent’s disputed domain names both redirect Internet users to a website that mirrors and copies Complainant’s official “Careers at Fluor” website, using the exact same design, color scheme, pictures, and text as Complainant’s official website.
iv. Respondent is attempting to phish personal information from visitors.
b. Policy ¶ 4(a)(iii)
i. The domain names should be considered as having been registered and being used in bad faith.
ii. The disputed domain names should be regarded as disrupting Complainant’s business.
iii. Respondent is using the <fluor-texas.com> and <fluor-tx.com> domain names to redirect Internet users to websites that are exact duplicates of Complainant’s “Career at Fluor” website.
iv. Respondent is attempting to phish personal information from visitors.
v. Respondent must have known of Complainant’s mark at the time it registered the disputed domain names.
c. Respondent registered the <fluor-texas.com> domain name March 16, 2014 and the <fluor-tx.com> domain name December 3, 2013.
v. Respondent did not submit a response to this case.
Complainant established that it has rights to and legitimate interests in the disputed domain names.
Respondent failed to establish and the Panel finds that evidence shows that Respondent has no such rights to or legitimate interests in the disputed domain names.
The disputed domain names are confusingly similar to Complainant’s protected marks.
Respondent registered and used the disputed domain names in bad faith.
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 Complainant to 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 to 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.
Given 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 will draw such inferences as the Panel 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.”).
Identical to or Confusingly Similar
Complainant asserts that it develops and implements innovative solutions for complex capital projects to diverse clients and industries, including chemicals and petrochemicals, commercial and institutional, government services, life sciences, manufacturing, mining, oil and gas, power, renewable energy, telecommunications, and transportation infrastructure. Complainant contends that it is the owner of trademark registrations with the USPTO for the FLUOR mark (e.g., Reg. No. 591,442, registered June 15, 1954). See Complainant’s Exhibit A. The Panel notes that while Respondent resides in Russia, Policy ¶ 4(a)(i) does not require Complainant to register its mark in the country of Respondent’s residence. See Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates and that it is sufficient that the complainant can demonstrate a mark in some jurisdiction). Therefore, the Panel holds that Complainant’s USPTO registration of the FLUOR mark sufficiently demonstrates that it owns rights in the mark under Policy ¶ 4(a)(i). See Paisley Park Enters. v. Lawson, FA 384834 (Nat. Arb. Forum Feb. 1, 2005) (concluding that the complainant established rights in the PAISLEY PARK mark under Policy ¶ 4(a)(i) through registration of the mark with the USPTO).
Complainant claims that Respondent’s <fluor-texas.com> and <fluor-tx.com> domain names are confusingly similar to Complainant’s FLUOR mark. Complainant contends that Respondent’s disputed domain names include a hyphen and the geographic terms “texas” or “tx.” The Panel holds that Respondent’s addition of punctuation or geographic terms does nothing to negate a panel from finding confusing similarity under Policy ¶ 4(a)(i). See Health Devices Corp. v. Aspen S T C, FA 158254 (Nat. Arb. Forum July 1, 2003) (“[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).”); see also Dollar Fin. Grp., Inc. v. Jewald & Assocs. Ltd., FA 96676 (Nat. Arb. Forum Apr. 6, 2001) (“The addition of ‘US’ or ‘USA’ does not alter the underlying mark held by the complainant.”). Further, the Panel notes that Respondent adds the generic top-level domain (“gTLD”) “.com” to each of the disputed domain names. The Panel finds that Respondent’s addition of a gTLD is inconsequential to a Policy ¶ 4(a)(i) analysis. See Metro-Goldwyn-Mayer Studios Inc. v. Antigua Domains, FA 1073020 (Nat. Arb. Forum Oct. 17, 2007) (“[T]he inclusion of the generic top-level domain ‘.com’ is inconsequential to the Policy ¶ 4(a)(i) analysis, as a top-level domain is required of all domain names.”). Accordingly, the Panel finds that Respondent’s <fluor-texas.com> and <fluor-tx.com> domain names are confusingly similar to Complainant’s FLUOR mark under Policy ¶ 4(a)(i).
Respondent makes no contentions relative to Policy ¶ 4(a)(i).
The Panel finds that the disputed domain names are confusingly similar to Complainant’s protected mark; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(i).
Rights to or Legitimate Interests
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden of proof shifts to Respondent to show it does have such 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 contends that Respondent has not been commonly known by the <fluor-texas.com> and <fluor-tx.com> domain names. Complainant alleges that Respondent and the disputed domain name are not sponsored by or affiliated with Complainant in any way. Complainant further states that it has not granted Respondent permission or authorization to use Complainant’s marks in any manner. The Panel notes that the WHOIS record shows that “BORIS CHEVKOV / JONES SMITH” is the registrant of the disputed domain names. See Complainant’s Exhibit E. In IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006), the panel found that respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as respondent was not authorized to register domain names featuring complainant’s mark and failed to submit evidence that it is commonly known by the domain name. Thus, the Panel holds that Respondent is not commonly known by the <fluor-texas.com> and <fluor-tx.com> domain names according to Policy ¶ 4(c)(ii).
Complainant argues that Respondent’s <fluor-texas.com> and <fluor-tx.com> domain names both redirect Internet users to a website that mirrors and copies Complainant’s official “Careers at Fluor” website, using the exact same design, color scheme, pictures, and text as Complainant’s official website. See Complainant’s Exhibit F. Complainant contends that the disputed domain name websites have purposely been designed to serve as replicas of Complainant’s career opportunities website for the purpose of deceiving Internet users into believing that the disputed domain names are associated with Complainant. This Panel finds that Respondent is attempting to pass itself off as Complainant through the use of the disputed domain names, and the Panel finds that Respondent is not using the disputed domain names for a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use. See Mortgage Research Center LLC v. Miranda, FA 993017 (Nat. Arb. Forum July 9, 2007) (“Because [the] respondent in this case is also attempting to pass itself off as [the] complainant, presumably for financial gain, the Panel finds the respondent is not using the <mortgageresearchcenter.org> domain name for a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Complainant asserts that Respondent is attempting to phish personal information from visitors. Complainant alleges that Respondent’s purpose in hosting the <fluor-texas.com> and <fluor-tx.com> domain names is to confuse and deceive unsuspecting visitors into first searching for job opportunities through the “Search for Jobs” function, and then submitting requests for these positions through the website. See Complainant’s Exhibit F. In Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Nat. Arb. Forum Apr. 30, 2010): “The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).” Therefore, the Panel finds that Respondent’s attempt to phish for consumers’ personal information shows that Respondent is not using the <fluor-texas.com> and <fluor-tx.com> domain names in connection with a Policy ¶ 4(c)(i) bona fide offering of goods or services or a Policy ¶ 4(c)(iii) legitimate noncommercial or fair use.
Respondent makes no contentions relative to Policy ¶ 4(a)(ii).
The Panel finds that Respondent has no rights to or legitimate interests in the disputed domain names; Complainant satisfied the elements of ICANN Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
Complainant urges that Respondent’s <fluor-texas.com> and <fluor-tx.com> domain names should be regarded as disrupting Complainant’s business. Complainant argues that Respondent uses the disputed domain names to lead consumers to webpages that duplicate Complainant’s “Career at Fluor” website. See Complainant’s Exhibit F. The Panel finds that Respondent’s use of the disputed domain names disrupts Complainant’s business, and the Panel finds that Respondent registered and is using the disputed domain names in bad faith under Policy ¶ 4(b)(iii). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Nat. Arb. Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)).
Complainant contends that Respondent is using the <fluor-texas.com> and <fluor-tx.com> domain names to redirect Internet users to websites that are exact duplicates of Complainant’s “Career at Fluor” website. Complainant asserts that Respondent’s website mirrors and copies Complainant’s official “Careers at Fluor” website, using the exact same design, color scheme, pictures, and text as Complainant’s official website. See Complainant’s Exhibit F. This Panel finds that Respondent is attempting to pass itself off as Complainant, the Panel holds that Respondent is using the disputed domain names to attract consumers for commercial gain, showing bad faith under Policy ¶ 4(b)(iv). See Am. Online, Inc. v. Miles, FA 105890 (Nat. Arb. Forum May 31, 2002) (“Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.”).
Complainant alleges that Respondent is attempting to phish personal information from visitors. Complainant argues that Respondent is using the <fluor-texas.com> and <fluor-tx.com> domain names to induce unsuspecting job applicants into submitting information to Respondent and then later sending those applicants emails encouraging them to submit job applications containing personal information. In Wells Fargo & Co. v. Maniac State, FA 608239 (Nat. Arb. Forum Jan. 19, 2006), the panel found bad faith registration and use where respondent was using the <wellsbankupdate.com> domain name in order to fraudulently acquire the personal and financial information of complainant’s customers. Therefore, the Panel holds that Respondent’s use of the disputed domain names to phish for consumers’ personal information shows bad faith use and registration pursuant to Policy ¶ 4(a)(iii).
Complainant notes that Respondent must have known of Complainant’s mark at the time it registered the <fluor-texas.com> and <fluor-tx.com> domain names. Complainant contends that its FLUOR brand and mark is known internationally and that Complainant has marketed and sold services under the FLUOR brand since 1912. Complainant further argues that the FLUOR trademark has been registered with the USPTO since 1954, showing constructive notice of the mark. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, the Panel finds that Respondent had actual knowledge of Complainant's mark and rights and therefore finds that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Nat. Arb. Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also 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 "actual knowledge of Complainant's mark when registering the disputed domain name").
Respondent makes no contentions relative to Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and used the disputed domain names in bad faith; Complainant satisfied the elements of ICANN 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 <fluor-texas.com> and <fluor-tx.com> domain names be TRANSFERRED from Respondent to Complainant
Hon. Carolyn Marks Johnson, Panelist
Dated: July 9, 2014
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