Hess Corporation v. GR c/o Globe Resources
Claim Number: FA0608000770909
Complainant is Hess Corporation (“Complainant”), represented by Robert M. Wasnofski, Jr., of Baker Botts L.L.P., 30 Rockefeller Plaza, 44th Floor, New York, NY 10112-4498. Respondent is GR c/o Globe Resources (“Respondent”), 9 Ibru Way, Kent KT17 8TY GB.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <hess-uk.com>, registered with Enom, Inc.
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 National Arbitration Forum electronically on August 3, 2006; the National Arbitration Forum received a hard copy of the Complaint on August 4, 2006.
On August 4, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <hess-uk.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 10, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of August 30, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@hess-uk.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 6, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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." 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 <hess-uk.com> domain name is confusingly similar to Complainant’s HESS mark.
2. Respondent does not have any rights or legitimate interests in the <hess-uk.com> domain name.
3. Respondent registered and used the <hess-uk.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Hess Corporation, has continuously used the HESS mark in association with oil and gas-related enterprises since as early as 1920. Complainant conducts its business activities in numerous countries around the world. On the East Coast of the United States, Complainant is the leading independent energy company with over 10,000 commercial and industrial customers in fourteen states. In the United Kingdom, where Respondent resides, Complainant maintains a variety of ongoing projects, including exploration of hydrocarbon on the UK Continental Shelf. Complainant’s main website is located at the <hess.com> domain name and also maintains websites at numerous other domain names.
Complainant holds trademark registrations for the HESS Mark in numerous countries around the world, including in the United States with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 832,393 issued July 25, 1967) and in the United Kingdom with the United Kingdom Patent Office (“UKPO”) (Reg. No. 1,503,668 issued November 18, 1994).
Respondent registered the <hess-uk.com> domain name on May 30, 2006. Respondent is using the disputed domain name to maintain a fraudulent web site whereby it offers employment opportunities with Complainant. Respondent is allegedly sending e-mails from the domain name to people stating that Complainant has offered them a job and directing them to visit the website at the <hess-uk.com> to learn more. Respondent’s website displays the name “Amarada Hess (UK) Ltd” and requires interested job seekers to pay £1000.00 for an “Operational/Professional Facilitation Fee.”
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."
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.”).
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.
Complainant has established rights in the HESS mark through registration of the mark with numerous trademark authorities, including the USPTO and UKPO. See Google, Inc. v. DktBot.org, FA 286993 (Nat. Arb. Forum Aug. 4, 2004) (finding that the complainant had established rights in the GOOGLE mark through its holding of numerous trademark registrations around the world); see also Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (“Complainant’s numerous registrations for its HONEYWELL mark throughout the world are sufficient to establish Complainant’s rights in the HONEYWELL mark under the Policy ¶ 4(a)(i).”).
Moreover, Respondent’s <hess-uk.com> domain name is confusingly similar to Complainant’s HESS mark because the disputed domain name incorporates the registered mark in its entirety and simply adds a hyphen and the term “uk.” In McClatchy Mgmt. Serv., Inc. v. Purdy, FA 165944 (Nat. Arb. Forum Aug. 12, 2003), the panel found the respondent’s <startribunenews.com> domain name to be confusingly similar to the complainant’s STAR TRIBUNE mark because “the mere addition of the term ‘news’ to the end of the domain name is a meaningless distinction, intended to avoid a direct copy of the actual name.” Because Respondent also merely adds a term to Complainant’s mark in the domain name, as well as a hyphen, Respondent has failed to sufficiently distinguish the <hess-uk.com> domain name from the HESS mark and therefore, the disputed domain name is confusingly similar to the mark pursuant to Policy ¶ 4(a)(i). See Eastman Chem. Co. v. Patel, FA 524752 (Nat. Arb. Forum Sept. 7, 2005) (“Therefore, the Panel concludes that the addition of a term descriptive of Complainant’s business, the addition of a hyphen, and the addition of the gTLD “.com” are insufficient to distinguish Respondent’s domain name from Complainant’s mark.”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Complainant asserts that Respondent has no rights or legitimate interests in the <hess-uk.com> domain name. Complainant must first make a prima facie case in support of its allegations, and then the burden shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, under certain circumstances, the mere assertion by the complainant that the respondent has no right or legitimate interest is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest does exist); see also G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”).
Respondent’s failure to answer the Complaint raises a
presumption that Respondent has no rights or legitimate interests in the <hess-uk.com>
domain name. See Branco do
Brasil S.A. v. Sync Tech., D2000-0727 (WIPO Sept. 1, 2000) (“By its
default, Respondent has not contested the allegation . . . that the Respondent
lacks any rights or legitimate interests in the domain name. The Panel thus assumes that there was no
other reason for the Respondent having registered <bancodobrasil.com> but
the presumably known existence of the Complainant´s mark BANCO DO BRASIL.”); see
also Am. Online, Inc. v. AOL Int'l,
D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests
where the respondent fails to respond).
However, the Panel will now examine the record
to determine if Respondent has rights or legitimate interests under Policy ¶
4(c).
Respondent is not commonly known by the <hess-uk.com>
domain name, because the WHOIS information lists “GR c/o Globe Resources” as
the registrant of the domain name, and there is no other evidence in the record
suggesting that Respondent is commonly known by the disputed domain name. Thus, Respondent has not established rights
or legitimate interests in the disputed domain name pursuant to Policy ¶
4(c)(ii). See M. Shanken Commc’ns v.
WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006)
(finding that the respondent was not commonly known by the
<cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the
WHOIS information and other evidence in the record); see also Coppertown Drive-Thru Systems, LLC v.
Snowden, FA 715089 (Nat. Arb.
Forum Jul. 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).
Furthermore, Respondent is using the <hess-uk.com>
domain name to engage in a fraudulent phishing scheme. Respondent is operating a website at the
disputed domain name that prominently displays Complainant’s HESS mark and
purports to offer job seekers a position with Complainant. Respondent requires interest parties to pay
a large fee in order to apply for this job.
The Panel holds that Respondent’s use of the <hess-uk.com>
domain name to fraudulently acquire the personal and financial information of
Internet users seeking job opportunities with Complainant is not a bona fide
offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use of the disputed domain name pursuant to Policy ¶
4(c)(iii). See Capital One Fin.
Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (defining
“phishing” as “a practice that is intended to defraud consumers into revealing
personal and proprietary information”); see also Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar.
29, 2004) (finding that using a domain name in a fraudulent scheme to deceive
Internet users into providing their credit card and personal information is not
a bona fide offering of goods or
services nor a legitimate noncommercial or fair use); see also HOPE
worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (finding
that a domain name that “is confusingly similar to Complainant’s mark,
redirects Internet users to a website that imitates Complainant’s website, and
is used to acquire personal information from Complainant’s potential associates
fraudulently” does not fall within the parameters of Policy ¶¶ 4(c)(i) or
(iii)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Respondent has registered and is using the <hess-uk.com>
domain name in bad faith pursuant to Policy ¶ 4(b)(iv), because Respondent is
attempting to attract, for commercial gain, Internet users seeking employment
with Complainant to its own website where it offers them fraudulent job
opportunities with Complainant.
Therefore, Respondent is taking advantage of the confusing similarity
between the disputed domain name and Complainant’s HESS mark in order to profit
from the goodwill associated with the mark.
See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Nat.
Arb. Forum Nov. 21, 2002) (finding that the respondent registered and used the
domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent
was using the confusingly similar domain name to attract Internet users to its
commercial website); see also State
Fair of Texas v. Granbury.com, FA 95288 (Nat. Arb. Forum Sept. 12, 2000)
(finding bad faith where the respondent registered the domain name
<bigtex.net> to infringe on the complainant’s goodwill and attract
Internet users to the respondent’s website).
In addition, Respondent
has engaged in a fraudulent phishing scheme by registering and using the <hess-uk.com>
domain name to divert Internet users to its own website that prominently
displays Complainant’s HESS mark and asks for Internet users’ personal and
financial information. Respondent’s
attempts to fraudulently acquire this information provides evidence of bad faith
registration and use pursuant to Policy ¶ 4(a)(iii). 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); see also Juno Online Servs., Inc. v. Nelson, FA
241972 (Nat. Arb. Forum Mar. 29, 2004) (“The domain name
<billing-juno.com> was registered and used in bad faith by using the name
for fraudulent purposes.”).
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 <hess-uk.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: September 19, 2006
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