Oracle International Corporation v. Mbaeri Anselam Chukwuma
Claim Number: FA1507001628398
Complainant is Oracle International Corporation (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is Mbaeri Anselam Chukwuma (“Respondent”), Malaysia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oracle-verify.com>, registered with GoDaddy.com, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 10, 2015; the Forum received payment on July 15, 2015.
On July 10, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <oracle-verify.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 16, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 5, 2015 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@oracle-verify.com. Also on July 16, 2015, 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 Forum transmitted to the parties a Notification of Respondent Default.
On August 7, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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
Complainant is one of the world’s largest developers and marketers of computer hardware systems and enterprise software – particularly its own brands of database management systems. As of 2011, Oracle was the second-largest software maker by revenue, after Microsoft. Complainant has registered the ORACLE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,200,239, Registered July 6, 1982), which demonstrates its rights in the mark. Respondent’s <oracle-verify.com> domain name is confusingly similar to Complainant’s ORACLE mark as it incorporates Complainant’s entire ORACLE mark and merely adds the generic term “verify”, the generic top-level domain (“gTLD”) “.com,” and a hyphen.
Respondent has no rights or legitimate interests in the <oracle-verify.com> domain name. Respondent is not commonly known by the disputed domain name or the name ORACLE. Further, Respondent is not making a bona fide offering of goods or services through the disputed domain name or a legitimate noncommercial or fair use. Rather, Respondent has been using the disputed domain name to send e-mails to various customers of Complainant as part of an attempt to impersonate Complainant and defraud such customers. Additionally, the resolving website to the <oracle-verify.com> domain name is associated with a scheme to “phish” for Internet users’ personal information.
Respondent has registered and used the <oracle-verify.com> domain name in bad faith. Respondent has used the disputed domain name to intentionally attract, for commercial gain, Internet users by creating a likelihood of confusion with Complainant’s mark pursuant to Policy ¶ 4(b)(iv). Respondent’s use of the <oracle-verify.com> domain name in a fraudulent email scheme to phish for Internet user information is evidence of bad faith under Policy ¶ 4(a)(iii) as the Policy ¶ 4(b) factors are indeed non-exclusive. Further, Respondent provided false WHOIS information to the domain name registrar. Finally, Respondent has demonstrated that it had actual knowledge of the ORACLE mark and Complainant’s rights in the mark pursuant to its use of the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Oracle International Corporation, is one of the world’s largest developers and marketers of computer hardware systems and enterprise software. Complainant has registered the ORACLE mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,200,239, Registered July 6, 1982), which demonstrates its rights in the mark.
Respondent, Mbaeri Anselam Chukwuma, registered the <oracle-verify.com> domain name on May 16, 2015. Respondent has been using the disputed domain name to send e-mails to various customers of Complainant as part of an attempt to impersonate Complainant and obtain personal information.
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 owns rights in the ORACLE mark under Policy ¶ 4(a)(i) through registration with the USPTO (e.g., Reg. No. 1,200,239, Registered July 6, 1982). See Trip Network Inc. v. Alviera, FA 914943 (Nat. Arb. Forum Mar. 27, 2007) (determining that the complainant’s trademark registrations with the USPTO for the CHEAPTICKETS and CHEAPTICKETS.COM marks were adequate to establish its rights in the mark pursuant to Policy ¶ 4(a)(i)); see also 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 it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Respondent’s <oracle-verify.com> domain name is confusingly similar to Complainant’s ORACLE mark under Policy ¶ 4(a)(i) as it incorporates Complainant’s entire ORACLE mark and merely adds the generic term “verify,” the gTLD “.com,” and a hyphen.
Respondent has no rights or legitimate interests in the <oracle-verify.com> domain name. Respondent is not commonly known by the disputed domain name or any variant of the ORACLE mark. The WHOIS information lists “Mbaeri Anselam Chukwuma” as registrant. See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in [the respondent’s] WHOIS information implies that [the respondent] is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply).
Respondent is not using the <oracle-verify.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). Respondent has been using the disputed domain name to impersonate Complainant and defraud Complainant’s customers. Specifically, Complainant references a sample of an e-mail sent by Respondent wherein Respondent poses as a representative of the “Oracle Mail Team” and contacts one of Complainant’s customers and states “Hi Account User. The Password for your Oracle Email account was recently requested for change which we need your authentication. If you have NOT requested for a new password, kindly Verify your account below. Fill in the appropriate information and submit to save your account from hackers.” When a customer clicks on the “Verify” link, they are led to a website which resolves from the disputed domain name. At this website appears Complainant’s text and graphics and the user is invited to input his or her “Full Name,” E-mail Address,” “Password,” and “Confirm Password” before clicking on a button labeled “Verify Account.” A respondent has not demonstrated a bona fide offering of goods or services or a legitimate noncommercial or fair use where the respondent intentionally attempts to phish for personal information from a complainant’s customers. See 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).”).
Respondent has registered and used the <oracle-verify.com> domain name in bad faith by intentionally attracting, for commercial gain, Internet users by creating a likelihood of confusion with Complainant’s mark under Policy ¶ 4(b)(iv). Specifically, Respondent attempts to have Complainant’s customers provide it with sensitive account login information. Respondent’s actions evidence an attempt to seek commercial gain. See HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (holding that the respondent registered and used the domain name in bad faith because it redirected Internet users to a website that imitated the complainant’s website and was used to fraudulently acquire personal information from the complainant’s potential associates); see also MySpace, Inc. v. Myspace Bot, FA 672161 (Nat. Arb. Forum May 19, 2006) (holding that the respondent registered and used the <myspacebot.com> domain name in bad faith by diverting Internet users seeking the complainant’s website to its own website for commercial gain because the respondent likely profited from this diversion scheme).
Respondent is engaged in the practice of phishing, whereby Respondent attempts to capitalize on Complainant’s well-known mark to have Complainant’s customers provide it with sensitive account information. Past panels have found evidence of bad faith under Policy ¶ 4(a)(iii) where a respondent’s disputed domain name redirects Internet users to a website that imitates the complainant’s website and is used to fraudulently acquire personal information from the complainant’s clients. See Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding bad faith registration and use because the respondent used the domain name to redirect Internet users to a website that imitated the complainant’s website and to fraudulently acquire personal information from the complainant’s clients).
Respondent listed invalid information in the WHOIS record for the <oracle-verify.com> domain name, thereby demonstrating bad faith pursuant to Policy ¶ 4(a)(iii). GoDaddy.com provided notice of the suspension of the disputed domain name due to invalid WHOIS information. Past panels have found bad faith where a respondent provides incorrect information to the domain name registrar. See Visit Am., Inc. v. Visit Am., FA 95093 (Nat. Arb. Forum Aug. 14, 2000) (“Evidence that a domain name owner provided incorrect information to a domain name registrar supports a finding of bad faith registration.”).
Finally, Respondent had actual knowledge of Complainant’s mark when registering the <oracle-verify.com> domain name. Therefore, Respondent registered and used the disputed domain name in bad faith according to Policy ¶ 4(a)(iii). See SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA 1581255 (Nat. Arb. Forum Oct. 29, 2014) (“Respondent’s knowledge of Complainant’s mark is apparent by Respondent’s attempt to project itself as Complainant.”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <oracle-verify.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 21, 2015
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