Chevron Intellectual Property LLC v dns admin / Carvajal Informacion
Claim Number: FA1408001573067
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Jenny T. Slocum of Dickinson Wright PLLC, District of Columbia, USA. Respondent is dns admin / Carvajal Informacion (“Respondent”), Colombia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chevronpetroleum.com.co>, registered with Network Solutions, LLC.
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.
James A. Carmody, Esq., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 1, 2014; the National Arbitration Forum received payment on August 5, 2014.
On August 5, 2014, Network Solutions, LLC confirmed by e-mail to the National Arbitration Forum that the <chevronpetroleum.com.co> domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the name. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, 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 August 5, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 25, 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@chevronpetroleum.com.co. Also on August 5, 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 September 2, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed James A. Carmody, Esq., 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 <chevronpetroleum.com.co> domain name, the domain name at issue, is confusingly similar to Complainant’s CHEVRON mark.
2. Respondent does not have any rights or legitimate interests in the domain name at issue.
3. Respondent registered and used the domain name at issue in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses the CHEVRON mark in connection with its oil and gas, and energy development business. The CHEVRON mark has been registered with the United States Patent and Trademark Office ("USPTO"). The <chevronpetroleum.com.co> domain name is confusingly similar to the CHEVRON mark.
Respondent has no rights or legitimate interests in the domain name. First, Respondent is not commonly known as the disputed domain name. Second, Respondent is fraudulently presenting itself as an employer under the CHEVRON mark to prospective candidates who are interested in employment with Complainant. Complainant asserts that there is no legitimacy to such a use, citing to Coldwell Banker Real Estate LLC v. piperleffler piperleffer / null, FA1529565 (Nat. Arb. Forum Dec. 27, 2013) (finding respondent’s use of the disputed domain name in an email address to pass itself off as the complainant online did not amount to a bona fide use or legitimate noncommercial or fair use of the domain name).
Respondent registered and used the disputed domain name in bad faith. Respondent is competing with and disrupting Complainant by absconding with the application materials of Internet users who seek employment with Complainant. Further, Respondent is capitalizing on the likelihood Internet users will think they are applying for a job with Complainant. Respondent had actual notice of Complainant’s rights when registering the domain name as evidenced by Respondent’s use of Complainant’s trademarks in disguising itself as a CHEVRON-backed employer.
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.”).
Complainant uses the CHEVRON mark in connection with its oil and gas, and energy development business. The CHEVRON mark has been registered with the United States Patent and Trademark Office ("USPTO"). The Panel notes, in particular, the USPTO Registration Number 364,683 registered February 14, 1939. This registration is satisfactory evidence of Policy ¶ 4(a)(i) rights in this trademark. See W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Nat. Arb. Forum Aug. 24, 2010) (stating that “the Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.”).
The <chevronpetroleum.com.co> domain name is confusingly similar to the CHEVRON mark. The domain name adds the top-level domain “.com.co” and the term “petroleum.” The “.com.co” is not relevant. See Yahoo! Inc. v. YAHOO.COM / YAHOO! INC., FA 1532273 (Nat. Arb. Forum Jan. 10, 2014) ("The Panel notes that Respondent utilizes the third-level domain name features offered through the “.co” registry, and that in this case Respondent’s domain name includes the top-level “.co” and second-level “.com” domains. The Panel finds that these additions are not . . . relevant to a Policy proceeding."). The Panel agrees the related term “petroleum” provides little distinction and serves to add confusion to the domain name. See Am. Int’l Group, Inc. v. Ling Shun Shing, FA 206399 (Nat. Arb. Forum Dec. 15, 2003) (finding that the addition of the term “assurance,” to the complainant’s AIG mark failed to sufficiently differentiate the name from the mark under Policy ¶ 4(a)(i) because the appended term related directly to the complainant’s business). Thus, there is confusing similarity between the domain name and the mark as per Policy ¶ 4(a)(i).
The Panel finds that Policy ¶ 4(a)(i) has been established.
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 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.”).
Respondent is not commonly known by the disputed domain name. The WHOIS information for the disputed domain name lists “dns admin / Carvajal Informacion” as the registrant of record. There is simply no basis for finding Respondent to be commonly known by the disputed domain name under 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.”).
Further, Respondent is fraudulently presenting itself as an employer under the CHEVRON mark to prospective candidates who are interested in employment with Complainant. There is no legitimacy to such a use; Coldwell Banker Real Estate LLC v. piperleffler piperleffer / null, FA1529565 (Nat. Arb. Forum Dec. 27, 2013) (finding respondent’s use of the disputed domain name in an email address to pass itself off as the complainant online did not amount to a bona fide use or legitimate noncommercial or fair use of the domain name). Per the decision in Coldwell Banker Real Estate LLC v. piperleffler piperleffer / null, there is no basis here for finding under Policy ¶ 4(c)(i), or Policy ¶ 4(c)(iii).
The Panel finds that Policy ¶ 4(a)(ii) has been established.
Respondent is competing with and disrupting Complainant by absconding with the application materials of Internet users who seek employment with Complainant. The domain name resolves to a website promoting employment opportunities with Complainant. These fraudulent job leads are evidence of Policy ¶ 4(b)(iii) bad faith in that Respondent is masquerading as Complainant to undermine Complainant’s human resource endeavors. See, e.g., 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)).
Further, Respondent is capitalizing on the likelihood Internet users will think they are applying for a job with Complainant. The domain name is being used to deliver job offers purporting to provide opportunities to work for Complaint. There is a likelihood Internet users may see the misappropriated logos and trademarks on the <chevronpetroleum.com.co> domain name and reach the false impression that Complainant is behind these job offers. As such, the Panel finds that Respondent is profiting from a likelihood Internet users will be confused as to Complainant’s association with this scheme—evidence of Policy ¶ 4(b)(iv) bad faith. 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.”).
Respondent had actual notice of Complainant’s rights when registering the domain name as evidenced by Respondent’s use of Complainant’s trademarks in disguising itself as a CHEVRON-backed employer. It appears to the Panel that Respondent actually knew of Complainant’s rights in the mark and as such Respondent is liable of bad faith under Policy ¶ 4(a)(iii). See, e.g., Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Nat. Arb. Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize “constructive notice” as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”).
The Panel finds that Policy ¶ 4(a)(iii) has been established.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chevronpetroleum.com.co> domain name be TRANSFERRED from Respondent to Complainant.
James A. Carmody, Esq., Panelist
Dated: September 5, 2014
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