National Oilwell Varco, L.P. v. UDRP Account / P.D.R Solutions FZC
Claim Number: FA1610001697485
Complainant is National Oilwell Varco, L.P. (“Complainant”), represented by Thomas L. Warden of Conley Rose, P.C., Texas, USA. Respondent is UDRP Account / P.D.R Solutions FZC (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <nov-corp.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 10, 2016; the Forum received payment on October 13, 2016.
On November 17, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <nov-corp.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 November 21, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 12, 2016 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@nov-corp.com. Also on November 21, 2016, 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 December 16, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant has registered its NOV mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 3,796,168, registered June 1, 2010), and has rights in the mark under Policy ¶ 4(a)(i). Respondent’s <nov-corp.com> domain name[1] is confusingly similar to Complainant’s mark, because “corp” is merely an abbreviation for the generic term “corporation,” and that the addition of a generic term plus a hyphen and generic top-level domain (“gTLD”) does not sufficiently differentiate the domain name from Complainant’s NOV mark.
2. Respondent has no rights or legitimate interests in the domain name. Complainant has not licensed or otherwise authorized Respondent to use its NOV mark in any fashion, and Respondent is not commonly known by <nov-corp.com>.
3. Respondent is not making any active use of the domain name, and has merely been using the domain name for its email suffix as part of a fraudulent scheme.
4. Respondent has registered and is using the <nov-corp.com> domain name in bad faith. Respondent is attempting to impersonate employees of Complainant in an effort to purchase listed products on NOV’s credit and/or using fraudulent purchase orders, and to have products delivered to it—in an effort to commit theft. Respondent’s efforts show an attempt to disrupt the business of Complainant, as Complainant specifically was targeted, and also for Respondent’s commercial gain, and thus Respondent’s conduct should be held to be in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the NOV mark. Respondent’s domain name is confusingly similar to Complainant’s NOV mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <nov-corp.com> domain name and that Respondent registered and uses the domain name 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 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(f), 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 (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 Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <nov-corp.com> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Nat. Arb. Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”). The Panel holds that Complainant has made a prima facie case.
Complainant contends that Respondent has no rights or legitimate interests in the <nov-corp.com> domain name. Complainant has produced evidence that it has not licensed or otherwise authorized Respondent to use its NOV mark in any fashion, and that Respondent is not commonly known by the disputed domain name. The WHOIS information for the domain name in question lists “UDRP Account” as the registrant, and the organization as “P.D.R Solutions FZC.” Complainant has also provided previous WHOIS information of the domain name listing “Helga Collins” as the registrant. This evidence establishes that Respondent is not commonly known by the <nov-corp.com> domain name. See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (FORUM Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”).
Complainant alleges that Respondent is not using the domain name to make a bona fide offering of goods and services under Policy ¶ 4(c)(i), or using it to make a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). Complainant has shown that Respondent is not making any active use of the domain name, and that Respondent is using it as part of a fraudulent scheme. Complainant has submitted evidence of alleged fraudulent activity in connection with Respondent apparently using the <nov-corp.com> email suffix to attempt to fraudulently make purchases with Complainant’s account. Such conduct has been found not to constitute a bona fide offering of goods and services or a legitimate noncommercial or fair use. See Am. Broad. Cos., Inc. v. Sech, FA 893427 (FORUM Feb. 28, 2007) (finding that the respondent’s non-use of the <abc7chicago.mobi> domain name since its registration provided evidence that the respondent lacked rights or legitimate interests in the disputed domain name); see also Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (FORUM Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”). Accordingly, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) and (iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant states that Respondent has registered and is using the <nov-corp.com> domain name in bad faith. Complainant has shown that Respondent is attempting to pass itself off as Complainant’s employee in a bad faith attempt to use fraudulent purchase orders, imputing disruption and attraction for commercial gain. Thus, Complainant has demonstrated that Respondent’s use of the <nov-corp.com> domain name creates a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the domain name. Complainant has produced evidence that Respondent’s use is only to impersonate Complainant through fraudulent emails. Intent to deceive Internet users can be strong evidence of bad faith under the Policy. See generally Mission KwaSizabantu v. Rost, D2000-0279 (WIPO June 7, 2000) (defining “competitor” as “one who acts in opposition to another and the context does not imply or demand any restricted meaning such as commercial or business competitor”); see also Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135, 1148 (9th Cir. 2002) ("While an intent to confuse consumers is not required for a finding of trademark infringement, intent to deceive is strong evidence of a likelihood of confusion."). Thus, the Panel finds Respondent’s registration and use of <nov-corp.com> is in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
The Panel finds 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 <nov-corp.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: December 20, 2016
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