Exxon Mobil Corporation v. Ludwig Rhys
Claim Number: FA1705001733649
Complainant is Exxon Mobil Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Ludwig Rhys (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <exxonjx.com>, registered with GoDaddy.com, LLC.
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 30, 2017; the Forum received payment on May 30, 2017.
On May 31, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <exxonjx.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 May 31, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 20, 2017 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@exxonjx.com. Also on May 31, 2017, 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 June 22, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is the world's largest publicly traded international oil and gas company, providing energy that helps underpin growing economies and improve living standards around the world. It is an industry leader in almost every aspect of the energy and petrochemical business, and it operates facilities or markets products in most of the world’s countries and explores for oil and natural gas on six continents. Complainant registered the EXXON mark in the United States in 1970, as well as in numerous other jurisdictions. Complainant uses the mark in connection with its global oil and gas business. The mark is famous. Complainant has substantial business operations in China, and its name and marks are well-known there.
According to Complainant, the disputed domain name is confusingly similar to Complainant’s mark because it incorporates the EXXON mark in its entirety, appending only the letters “jx” and the generic top-level domain (“gTLD”) “.com,” neither of which meaningfully distinguishes the domain name from Complainant’s registered mark. Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the EXXON mark for any purpose. Respondent also fails to use the disputed domain name in connection with any bona fide offering of goods or services, because the domain name simply hosts various advertising links. Respondent presumably profits from these links by way of click through fees. Further, Respondent, by using a confusingly similar domain name, must have registered the domain name to benefit from the fame and goodwill of the EXXON mark. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and continues to use the disputed domain name in bad faith. Respondent’s use of the disputed domain involves attracting Internet users to its site using Complainant’s notoriety, so that it may unfairly profit by way of pay-per-click advertisements. Additionally, Respondent provided a false address when registering the disputed domain name. Finally, Respondent must have had actual or constructive notice of Complainant’s rights in the EXXON mark because of its widespread notoriety—but chose to register the disputed domain name nonetheless, which indicates bad faith. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the registered trademark EXXON with rights dating back to 1970. The mark is famous.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name resolves to a web site which contain pay-per-click advertising links not related to Complainant’s business.
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 disputed domain name is confusingly similar to Complainant’s EXXON mark because it contains the mark in its entirety, with only two minor additions: appending the letters “jx,” along with the gTLD “.com.” Neither of these sufficiently distinguishes the disputed domain name from its EXXON mark. Previous panels have found that the addition of small numbers of letters—particularly if the mark at issue remains intact and cognizable—fails to sufficiently distinguish domain names from registered marks. See L.F.P., Inc. v. Yarbrough, FA 114420 (Forum July 9, 2002) (finding that <xxxbarelylegal.com> domain name to be confusingly similar to the complainant’s BARELY LEGAL mark because the addition of “xxx” was not a distinguishing addition). Further, the addition of the “.com” gTLD is insufficient to preclude a finding of confusing similarity. See, e.g., AOL Inc. v. Morgan, FA 1349260 (Forum Nov. 4, 2010) (concluding that the addition of the generic top-level domain (“gTLD”) “.com” does not distinguish the disputed domain name from the mark). Therefore, this Panel finds that the additions made to Complainant’s EXXON mark in <exxonjx.com> do not serve to differentiate the two for the purposes of Policy ¶ 4(a)(i).
Complainant has neither authorized nor licensed Respondent’s use of the EXXON mark. Further, Respondent is not commonly known by the disputed domain name within the meaning of Policy ¶ 4(c)(ii). When a respondent fails to submit a response, panels may look to the WHOIS records to establish the lack of affiliation between a registrant and a domain name. See Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name). Here, the Panel notes that the WHOIS information concerning the disputed domain name identifies “Ludwig Rhys” as the registrant, which provides no evidence that Respondent is commonly known by the domain name. As such, the Panel concludes that Respondent is not commonly known by, and thus lacks rights and legitimate interests in, the <exxonjx.com> domain name pursuant to Policy ¶ 4(c)(ii).
Additionally, Respondent uses the disputed domain name’s resolving site to host various links, including some resolving to gambling sites. The advertising of commercial hyperlinks, related or unrelated, does not provide a bona fide offering of goods. See Yahoo! Inc. v. Web Master, FA 127717 (Forum Nov. 27, 2002) (finding that the respondent’s use of a confusingly similar domain name to operate a pay-per-click search engine, in competition with the complainant, was not a bona fide offering of goods or services). Further, since these kinds of advertisements presumably generate revenue by way of click-through fees, they cannot be noncommercial. See Vance Int’l, Inc. v. Abend, FA 970871 (Forum June 8, 2007) (concluding that the operation of a pay-per-click website at a confusingly similar domain name does not represent a legitimate noncommercial or fair use, regardless of whether or not the links resolve to competing or unrelated websites or if the respondent is itself commercially profiting from the click-through fees). Therefore, the Panel finds that Complainant sufficiently made its case against Respondent under Policy ¶¶ 4(c)(i) and (iii).
Further, Respondent, by using a confusingly similar domain name, must have registered the domain name to benefit from the fame and goodwill of the EXXON mark. Using a confusingly similar domain name simply to generate more Internet traffic off of the fame and goodwill of a mark does not provide a bona fide offering of goods or services or legitimate noncommercial or fair use. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). The Panel finds that there would be no other reason for Respondent to register the confusingly similar domain name incorporating the famous EXXON mark if it was not to take advantage of its fame and notoriety. Thus the Panel finds that Respondent has failed to provide a bona fide offering of goods or services under Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use per Policy ¶ 4(c)(iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s famous mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent uses the disputed domain name to attract Internet users by way of the EXXON mark’s fame, in order to personally profit by way of pay-per-click revenue. Capitalizing on the goodwill and notoriety of widely known marks in this way is evidence of bad faith use and registration under Policy ¶ 4(b)(iv). See Ass’n of Junior Leagues Int’l Inc. v. This Domain Name My Be For Sale, FA 857581 (Forum Jan. 4, 2007) (holding that the respondent’s use of the disputed domain name to maintain a pay-per-click site displaying links unrelated to the complainant and to generate click-through revenue suggested bad faith registration and use under Policy ¶ 4(b)(iv)); see also Bank of Am. Fork v. Shen, FA 699645 (Forum June 11, 2006) (holding that the respondent’s previous use of the <bankofamericanfork.com> domain name to maintain a web directory was evidence of bad faith because the respondent presumably commercially benefited by receiving click-through fees for diverting Internet users to unrelated third-party websites); see also Microsoft Corp. v. Lafont, FA 1349611 (Forum Nov. 9, 2009)(“intentional appropriation of Complainant’s mark to mislead Internet users and subsequently profit from them reveals bad faith registration and use under Policy ¶ 4(b)(iv)”). Therefore, the Panel finds that Complainant registered and is using the disputed domain name in bad faith within the meaning of Policy ¶ 4(b)(iv).
Further, the WHOIS information for the disputed domain name appears to be false. Respondent’s address is listed at 3976 N. Yosemite St. in Parkville, China. In another decision against this same Respondent, the WHOIS information showed his address to be on N. Yosemite St. in Parkville, Aomori Japan. See C & J Clark International Limited v. Ludwig Rhys, D2017-0260 (WIPO, Mar. 30, 2017). The Panel there noted “While Aomori is a prefecture in Japan, there does not appear to be any city or town called ‘Parkville’ in Japan. Further, the street address indicated to be on ‘N Yosemite St’ does not appear to be a Japanese street address. In light of Respondent’s failure to respond, the Panel concludes that the WHOIS information is likely incorrect or false.” It is clear that providing false WHOIS information is indicative of bad faith registration and use.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <exxonjx.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: June 22, 2017
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