Kimmeridge Energy Management Company, LLC v. Gustavo Alvarez
Claim Number: FA1712001761058
Complainant is Kimmeridge Energy Management Company, LLC (“Complainant”), represented by Penina Michlin Chiu of Frederic Dorwart, Lawyers, Oklahoma, USA. Respondent is Gustavo Alvarez (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <kimeridgeenergy.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.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 4, 2017; the Forum received payment on December 4, 2017.
On December 5, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <kimeridgeenergy.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 December 6, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 26, 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@kimeridgeenergy.com. Also on December 6, 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 December 29, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant uses the KIMMERIDGE ENERGY mark in connection with investment advisory and management services and oil and gas exploration. Complainant has owned and used its own domain name, <kimmeridgeenergy.com>, since at least 2012. See Compl. Annex 4 & 5 (registration information and historical screenshots). Complainant registered the KIMMERIDGE ENERGY mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 4,493,698, registered Mar. 11, 2014). See Compl. Annex 2. Respondent’s <kimeridgeenergy.com> domain name is identical or confusingly similar to Complainant’s mark as it merely omits one letter “m” from Complainant’s mark and appends the generic top-level domain (“gTLD”) “.com.”
ii) Respondent has no rights or legitimate interests in the <kimeridgeenergy.com> domain name. Respondent is not commonly known by the disputed domain name, as the WHOIS information lists the registrant as “Gustavo Alvarez” after previously employing a privacy shield. See Compl. Annex 1 & Amend. Compl. Annex 1. Complainant also has not authorized or licensed Respondent to use the mark in any way. Respondent also does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, the website to which the disputed domain name resolves brings up an error, as the site is currently not in use. See Compl. Annex 6. Further, Respondent has impersonated Complainant in an apparent phishing attempt, as a “Kyle” initiates contact with unsuspecting job searchers through an AngelList account registered under the disputed domain name, Kyle@kimeridgeenergy.com. See Compl. Annex 7. Respondent likely impersonates a fictitious individual to obtain sensitive personal information. Additionally, Respondent’s use of a typo-squatted domain name, which is a common misspelling, is further evidence that Respondent lacks rights and legitimate interests.
iii) Respondent registered and uses the <kimeridgeenergy.com> domain name in bad faith. Respondent has intentionally attempted to cause, and is causing, confusion with Complainant’s mark long after Complainant established legitimate good will in the KIMMERIDGE ENERGY mark. Further, Respondent uses the domain name to send phishing emails that impersonate Complainant. See Compl. Annex 7. Additionally, Respondent intentionally misspells Complainant’s mark to draw users to its website, constituting typosquatting. Finally, Respondent registered the domain name employing a privacy service to conceal its identity. See Compl. Annex 1.
B. Respondent
Respondent failed to submit a response in this proceeding. The Panel notes that Respondent registered the <kimeridgeenergy.com> domain name on September 19, 2017. See Compl. Annex 1.
Complainant established that it had rights in the mark contained in the disputed domain name. Disputed domain name is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent registered and used the disputed 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.”).
Complainant claims to have registered the KIMMERIDGE ENERGY mark with the USPTO (e.g. Reg. No. 4,493,698, registered Mar. 11, 2014). See Compl. Annex 2. Registration of a mark with the USPTO sufficiently confers a complainant’s rights in a mark for the purposes of Policy ¶ 4(a)(i). See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”). Accordingly, the Panel finds that Complainant has established rights in the KIMMERIDGE ENERGY mark for the purposes of Policy ¶ 4(a)(i).
Complainant next argues that Respondent’s <kimeridgeenergy.com> domain name is identical or confusingly similar to Complainant’s mark as it merely omits one letter “m” from Complainant’s mark and appends the gTLD “.com.” Similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶4(a)(i). See Twitch Interactive, Inc. v. zhang qin, FA 1626511 (Forum Aug. 4, 2015) (finding, “The relevant comparison then resolves to the trademark, TWITCH, with the term, ‘titch,’ which, as can be readily seen, merely removes the letter ‘w’ from the trademark. In spite of that omission the compared integers remain visually and aurally very similar and so Panel finds them to be confusingly similar for the purposes of the Policy.”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). The Panel therefore finds that the <kimeridgeenergy.com> domain name is confusingly similar to the KIMMERIDGE ENERGY mark under Policy ¶4(a)(i).
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the <kimeridgeenergy.com> domain name as Respondent is not commonly known by the disputed domain name, nor has Complainant authorized Respondent to use the KIMMERIDGE ENERGY mark. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The Panel notes that a privacy service was used by Respondent, but was lifted as a result of the commencement of this proceeding. See Compl. Annex 1. As a result, the Panel sees that the WHOIS information of record identifies Respondent as “Gustavo Alvarez.” See Amend. Compl. Annex 1. Additionally, lack of evidence in the record to indicate that a complainant authorized respondent to register a domain name using a complainant’s mark supports a finding that Respondent does not have rights or legitimate interests in a disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent is not commonly known by the <kimeridgeenergy.com> domain name under Policy ¶ 4(c)(ii).
Next, Complainant contends that the website to which the disputed domain name resolves brings up an error, as the site is currently not in use. Failure to make active use of a confusingly similar domain name can evince a lack of a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Complainant provides a screenshot of the resolving domain, which displays the message “404. That’s an error.” See Compl. Annex 6. Accordingly, the Panel finds that Respondent fails to actively use the disputed domain name, failing to make 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).
Further, Complainant argues that Respondent uses the domain name to phish for personal information from consumers via email. Complainants may use phishing attempts to evince a lack of any bona fide offering of goods or services or legitimate noncommercial or fair use. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (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).”). Complainant provides screenshots of this alleged phishing attempt, and it appears Respondent solicits employment opportunities via the email address “kylehuttger@hotmail.com,” to various individuals. See Compl. Annex 7. As such, the Panel finds that Respondent attempts to phish for information, failing to use the domain name in connection with any bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
Finally, Complainant claims Respondent engages in typosquatting by intentionally misspelling Complainant’s mark in the domain name. Registering a domain name containing common typing errors in a complainant’s mark can indicate a lack of rights and legitimate interests in a domain name under Policy ¶ 4(a)(ii). See Webster Financial Corporation and Webster Bank, National Assocation v. Pham Dinh Nhut, FA1502001605819 (Forum Apr. 17, 2015) (“Respondent’s acts of typosquatting provide additional evidence that respondent lacks rights and legitimate interests in the disputed domain names pursuant to Policy ¶ 4(a)(ii).”). Here, Respondent omits one letter, the letter “m,” from Complainant’s KIMMERIDGE ENERGY mark. As such, as the Panel believes Respondent’s domain name is a typosquatted version of Complainant’s mark, the Panel decides to use this as additional evidence of Respondent’s alleged lack of rights and legitimate interests per Policy ¶ 4(a)(ii).
The Panel finds that Complainant has made out a prima facie case that arises from the considerations above. All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant argues that Respondent registered and uses the <kimeridgeenergy.com> domain name in bad faith by intentionally attempting to cause confusion with Complainant’s mark long after Complainant established legitimate good will in the KIMMERIDGE ENERGY mark. Using a disputed domain name to trade upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); 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."). Complainant claims the commercial gain likely is derived from the phishing attempts alleged by Complainant, which I will reflect in the forthcoming paragraph. As such, the Panel agrees that Respondent attempts to benefit off the good will associated with Complainant’s mark in bad faith under Policy ¶ 4(b)(iv).
Next, Complainant argues that Respondent uses the disputed domain name to fraudulently send emails to Complainant’s customers in hopes of receiving sensitive personal information from unsuspecting users. Operating a phishing scheme through fraudulent email communications can evince bad faith under Policy ¶ 4(a)(iii). See Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015) (“Respondent’s attempt to use the <zoietis.com> domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).”). As noted above, Complainant provides screenshots of this alleged phishing attempt, and it appears Respondent solicits employment opportunities to various individuals through the email address “kylehuttger@hotmail.com.” See Compl. Annex 7. Accordingly, the Panel agrees that Respondent’s apparent phishing scheme does not amount to any good faith use of the <kimeridgeenergy.com> domain name per Policy ¶ 4(a)(iii).
Lastly, Complainant contends that by removing one letter “m” from the KIMMERIDGE ENERGY mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). Thus, as the Panel agrees that Respondent’s removal of the letter “m” from Complainant’s mark constitutes typosquatting, the Panel decides to use this as further evidence of bad faith by Respondent.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <kimeridgeenergy.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: January 5, 2018
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