Chevron Intellectual Property LLC v TOM CLEVELY aka JAMES ROBTER aka HR DESK aka SYLVIA JEWELL
Claim Number: FA1410001585715
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Jenny T. Slocum of Dickinson Wright PLLC, District of Columbia, USA. Respondent is TOM CLEVELY aka JAMES ROBTER aka HR DESK aka SYLVIA JEWELL (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <texaco-us.com>, <texacogas-us.com>, <chevronoil-gas.com>, and <chevronexpatriate.com>, registered with ENOM, INC.
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 October 20, 2014; the National Arbitration Forum received payment on October 21, 2014.
On October 20, 2014, ENOM, INC. confirmed by e-mail to the National Arbitration Forum that the <texaco-us.com>, <texacogas-us.com>, <chevronoil-gas.com>, and <chevronexpatriate.com> domain names are registered with ENOM, INC. and that Respondent is the current registrant of the names. ENOM, INC. has verified that Respondent is bound by the ENOM, INC. 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 October 28, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 17, 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@texaco-us.com, postmaster@texacogas-us.com, postmaster@chevronoil-gas.com, postmaster@chevronexpatriate.com. Also on October 28, 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 November 25, 2014, 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
1. Respondent’s <texaco-us.com>, <texacogas-us.com>, <chevronoil-gas.com>, and <chevronexpatriate.com> domain names are confusingly similar to Complainant’s CHEVRON or TEXACO marks.
2. Respondent does not have any rights or legitimate interests in the <texaco-us.com>, <texacogas-us.com>, <chevronoil-gas.com>, and <chevronexpatriate.com> domain names.
3. Respondent registered and uses the <texaco-us.com>, <texacogas-us.com>, <chevronoil-gas.com>, and <chevronexpatriate.com> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses the CHEVRON and TEXACO marks to promote its oil and gas business. The CHEVRON mark is registered with the United States Patent and Trademark Office ("USPTO") (e.g., Reg. No. 364,683, registered Feb. 14, 1939), as is the TEXACO mark (e.g., Reg. No. 57,902, registered Dec. 4, 1906).
Respondent registered the disputed domain names on or after September 19, 2013. The disputed domain names do not resolve to an active website.
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.”).
Preliminary Issue: Multiple Respondents
Complainant alleges that the disputed domain names are effectively controlled by the same person and/or entity, operating under several aliases. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
Complainant argues that all of the disputed domain names are registered by a single person, using the same IP address and the same domain name registrar, with all of the domain names resolving to nearly identical error web pages. In the absence of a Response, the Panel accepts Complainant’s arguments and will treat the named registrants as one Respondent.
The Panel finds that Complainant’s USPTO registrations for its CHEVRON and TEXACO marks satisfy the Policy ¶ 4(a)(i) requirement that Complainant has rights in the marks. See Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations [with the USPTO] establish Complainant's rights in the BLIZZARD mark.”).
Respondent’s <texaco-us.com>, <texacogas-us.com>, <chevronoil-gas.com>, and <chevronexpatriate.com> domain names are confusingly similar to the respective marks. First, the hyphens and the gTLDs are not relevant. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy). The insertion of generic, geographic, or descriptive terms such as “gas” is insufficient to distinguish the domain names from the incorporated mark. See Vance Int’l, Inc. v. Abend, FA 970871 (Nat. Arb. Forum June 8, 2007) (finding that by adding the term “security” to the complainant’s VANCE mark, which described the complainant’s business, the respondent “very significantly increased” the likelihood of confusion with the complainant’s mark); 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.”). Accordingly, the Panel finds that the <texaco-us.com>, <texacogas-us.com>, <chevronoil-gas.com>, and <chevronexpatriate.com> domain names are confusingly similar to Complainant’s marks.
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 claims that Respondent is not known by the disputed domain names. The Panel notes that various personal names are listed as the registrant of record for the disputed domain names, none of which bear similarity to the domain names. Thus, the Panel finds that Respondent is not commonly known by the disputed domain names under 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).
Complainant also argues that Respondent has failed to provide an active website at any of the disputed domain names. The Panel notes that all of the domain names resolve to “error” websites. The Panel finds that the inactive holding of the disputed domain names demonstrates that Respondent’s is not making a Policy ¶ 4(c)(i) bona fide offering, or Policy ¶ 4(c)(iii) legitimate noncommercial or fair use of the disputed domain names. See Hewlett-Packard Co. v. Shemesh, FA 434145 (Nat. Arb. Forum Apr. 20, 2005) (finding that a respondent’s non-use of a domain name that is identical to a complainant’s mark is not 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)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant claims that Respondent is disrupting Complainant’s business. Although the use of the disputed domain names for an “error” website is not a competitive use of the domain names, the Panel finds that diverting potential customers of Complainant is nonetheless disruptive, and bad faith under Policy ¶ 4(b)(iii).
Complainant argues that the use of the disputed domain names creates a likelihood of confusion through which Respondent can profit. Although the disputed domain names are not currently being actively used, the potential to divert Internet users for profit most likely motivated the registration of the disputed domain names. In any case, in the absence of permission from Complainant, there is no use by the Respondent of the Complainant’s marks in domain names that would not be in bad faith. In Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose), the panel found Policy ¶ 4(b)(iv) bad faith when there was some evidence to suggest that any active use of the domain name would allow the respondent to profit from a likelihood of Internet users’ confusion.
Complainant further argues that the appropriation of two of Complainant’s marks in the disputed domain names suggests that Respondent had actual notice of Complainant’s marks prior to domain name registration. The Panel agrees and finds that Respondent had actual knowledge of Complainant's mark and rights and therefore registered the disputed domain names in bad faith under Policy ¶ 4(a)(iii). 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 "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 <texaco-us.com>, <texacogas-us.com>, <chevronoil-gas.com>, and <chevronexpatriate.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: December 3, 2014
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page