Chevron Phillips Chemical Company, L.P. v. Koh Seowbeankoh Bean
Claim Number: FA1811001816885
Complainant is Chevron Phillips Chemical Company, L.P. (“Complainant”), represented by John C. Cain of Fleckman & McGlynn, PLLC, Texas, USA. Respondent is Koh Seowbeankoh Bean (“Respondent”), Florida, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cpcchem.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 conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 16, 2018; the Forum received payment on November 16, 2018.
On November 17, 2018, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <cpcchem.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 19, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 10, 2018 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@cpcchem.com. Also on November 19, 2018, 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 13, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a major participant in the global energy industry.
Complainant holds a registration for the CPCHEM trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 3,018,435, registered November 22, 2005, renewed as of February 6, 2016.
Respondent registered the domain name <cpcchem.com> on October 3, 2018.
The domain name is confusingly similar to Complainant’s CPCHEM mark.
Respondent is not affiliated with Complainant in any way.
Respondent is not licensed or otherwise authorized to use Complainant’s CPCHEM mark.
Respondent has not been commonly known by the domain name.
Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Respondent fails to make any active use of the domain name except to employ it to impersonate Complainant in furtherance of a fraudulent “phishing” scheme by which it impersonated the Chief Financial Officer of Complainant in an e-mail message in sending a wire transfer of funds request to an employee of Complainant.
Respondent does not have rights to or legitimate interests in the domain name.
Respondent’s use of the domain name disrupts Complainant’s business.
Respondent knew of Complainant’s rights in the CPCHEM mark prior to registering the domain name.
Respondent registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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:
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the CPCHEM trademark sufficient for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See, for example, Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum August 4, 2015) (finding that a UDRP complainant’s USPTO registrations for a mark sufficiently demonstrated its rights in that mark under Policy ¶ 4(a)(i).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <cpcchem.com> domain name is confusingly similar to Complainant’s prominent and longstanding CPCHEM trademark. The domain name contains the mark in its entirety, merely adding a third letter “c” and the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Am. Online, Inc. v. David, FA 104980 (Forum April 10, 2002):
The misspelling of a famous mark does not diminish the confusingly similar nature between the mark[] and the disputed domain name[].
See also Trip Network Inc. v. Alviera, FA 914943 (Forum March 27, 2007) (concluding that adding a gTLD to the mark of another in creating a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). This is because every domain name requires a gTLD.
Under Policy 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the <cpcchem.com> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <cpcchem.com> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use the CPCHEM mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Koh Seowbeankoh Bean,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA 626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent is not using the <cpcchem.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use, but rather to impersonate Complainant as part of a fraudulent “phishing” scheme by which it has impersonated the Chief Financial Officer of Complainant in an e-mail message to send a wire transfer of funds request to an employee of Complainant. This employment of the domain name is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See, for example, Abbvie, Inc. v. James Bulow, FA 1701075 (Forum November 30, 2016):
Respondent uses the … domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the <cpcchem.com> domain name to operate an illicit phishing scheme as alleged in the Complaint, and that this use of the domain name disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in registering and using the domain name. See. For example, Microsoft Corporation v. Terrence Green, FA 1661030 (Forum April 4, 2016) (finding that a respondent’s use of disputed domain names to send fraudulent emails supported a finding of bad faith registration and use of the domain names under Policy ¶ 4(b)(iii)).
We are also convinced by the evidence that Respondent attempts to use the <cpcchem.com> domain name, which we find to be confusingly similar to Complainant’s mark, to profit by fraudulently obtaining funds from Complainant. Under Policy ¶ 4(b)(iv), this further demonstrates bad faith on the part of Respondent in registering and using the domain name. See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding, under Policy ¶ 4(b)(iv), that using a disputed domain name in an e-mail address to pass itself off as a UDRP complainant in a phishing scheme was evidence of bad faith registration and use of the domain name by a respondent).
Finally, under this head of the Policy, it is plain from the record that Respondent knew of Complainant and its rights in the CPCHEM mark when Respondent registered the challenged <cpcchem.com> domain name. This further illustrates Respondent’s bad faith in registering that domain name. See, for example, Google Inc. v. Ahmed Humood, FA1411001591796 (Forum January 7, 2015), finding bad faith in the registration of contested domain names where it concluded from the available evidence that:
This Panel makes that inference; Respondent had actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s … mark and Respondent’s use of one of the disputed domain names ….
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <cpcchem.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: December 26, 2018
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