Anadarko Petroleum Corporation v. yang yi
Claim Number: FA1412001595779
Complainant is Anadarko Petroleum Corporation (“Complainant”), represented by Robert McAlhany of Adams and Reese LLP, Tennessee, USA. Respondent is yang yi (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <anadarko.xyz>, registered with Xin Net Technology Corporation.
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.
Sebastian M W Hughes as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on December 17, 2014; the National Arbitration Forum received payment on December 17, 2014. The Complaint was received in English and Chinese.
On December 17, 2014, Xin Net Technology Corporation confirmed by e-mail to the National Arbitration Forum that the <anadarko.xyz> domain name is registered with Xin Net Technology Corporation and that Respondent is the current registrant of the name. Xin Net Technology Corporation has verified that Respondent is bound by the Xin Net Technology Corporation 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 December 18, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 7, 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@anadarko.xyz. Also on December 18, 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.
A timely Response was received and determined to be complete on January 5, 2015. The Response was in both English and Chinese.
On January 14, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sebastian M W Hughes 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant was listed as the 202nd largest company in the USA according to the 2014 Fortune 500, with annual revenue of $14.5 billion. It has been using its well-known trademark ANADARKO (the “Trademark”) continuously since 1985 in respect of a wide range of goods and services, including oil and gas exploration, drilling and production; insurance and financial services in the fields of industrial leasing and purchasing; computer, science and legal services; lubricants, crude oil and natural gas; building construction and repair services; advertising and business services; and transportation and storage services. Complainant is the owner of numerous registrations worldwide in respect of the Trade Mark, the earliest registration dating from 1987.
The domain name is identical to the Trademark. It comprises the Trademark in its entirety.
Respondent no rights or legitimate interests in the domain name. Respondent has made no use of the domain name.
Complainant argues that the apparent lack of any good faith attempt to ascertain whether or not Respondent was registering and using someone else’s trademark, such as by conducting trademark searches or search engine searches, supports a finding of bad faith.
B. Respondent
Respondent contends as follows:
1. The domain name was registered during the open registration period for .xyz domain names, and more than ten months after the .xyz gTLD was released. As Complainant failed to register the domain name during this period, the rule is that whoever first registers the domain name should own the domain name.
2. Domain names and trademarks are different types of intellectual property
registration systems and there is not any relationship between them. The domain name has not been used, so there is no confusion (and will be no confusion when the domain name is used) between the domain name and the goods and services of Complainant.
3. Domain names, trademarks, trade names and other names in different fields simultaneously exist in different countries, and organizations, institutions and individuals have the right to enjoy the freedom to use a combination of letters or characters without being restricted by unfair monopolistic behaviour.
4. Respondent registered the domain name based upon the Pinyin Romanized script for the Chinese characters 爱南单软控 (ai nan dan ruan kong).
Complainant has established all the elements entitling it to transfer of the domain name.
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.
The domain name is identical to the Trade Mark.
The Panel therefore finds that the domain name is confusingly similar to the Trademark and holds that the Complaint fulfills the first condition of paragraph 4(a) of the Policy.
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:
(i) before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent (as an individual, business, or other organisation) has been commonly known by the domain name even if the respondent has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate non-commercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There is no evidence that Complainant has authorised, licensed, or permitted Respondent to register or use the domain name or to use the Trademark. Complainant has prior rights in the Trademark which precede Respondent’s registration of the domain name by decades. The Panel finds on the record that there is therefore a prima facie case that Respondent has no rights or legitimate interests in the domain name, and the burden is thus on Respondent to produce evidence to rebut this presumption.
Respondent has failed to show that it has acquired any legitimate trademark rights in respect of the domain name or that the domain name has been used in connection with a bona fide offering of goods or services. Respondent has made no use whatsoever of the domain name.
There has been no evidence adduced to show that Respondent has been commonly known by the domain name.
There has been no evidence adduced to show that Respondent is making a legitimate non-commercial or fair use of the domain name.
Respondent’s “first come, first served” analysis of trade mark rights in the context of the domain name registration system is misconceived.
The Panel finds Respondent’s bare assertion that the domain name is based upon the Pinyin Romanization for爱南单软控 (ai nan dan ruan kong) wholly unconvincing. Respondent has otherwise failed to provide any evidence to explain why Respondent would seek to register such a domain name. There is no evidence of Respondent otherwise having any rights or legitimate interests in respect of the phrase爱南单软控 (ai nan dan ruan kong), a meaningless phrase which literally translates as “love south single soft control”.
Furthermore, the Pinyin “ai nan dan ruan kong” is significantly different to the Trade Mark (ANADARKO).
If Respondent genuinely intended to register a domain name for the phrase爱南单软控 (ai nan dan ruan kong), it begs the question why Respondent did not register, instead of the disputed domain name herein, the domain name <ainandanruankong.xyz>.
The Panel finds that Respondent has failed to produce any evidence to establish rights or legitimate interests in the domain name. The Panel therefore finds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.
Given the notoriety of the Trademark and as the domain name is identical to the Trademark, the Panel has no hesitation in concluding that Respondent must have known of Complainant and its Trademark at the time of registration of the domain name. It is noteworthy that Respondent has not asserted the contrary in the Response. In all the circumstances, the Panel concludes that the domain name has been registered and used opportunistically in bad faith.
The Panel therefore concludes that the domain name has been registered and used in bad faith. Accordingly, the third condition of paragraph 4(a) of the Policy has been fulfilled.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <anadarko.xyz> domain name be TRANSFERRED from Respondent to Complainant.
Sebastian M W Hughes, Panelist
Dated: January 28, 2015
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page