Lisa Tallim, Advantage Oil & Gas Ltd. v. makay lee / makayltd
Claim Number: FA1901001826822
Complainant is Lisa Tallim, Advantage Oil & Gas Ltd. (“Complainant”), represented by Geoffrey Vanderburg of Iradesso Communications Corp., Canada. Respondent is makay lee / makayltd (“Respondent”), India.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <advantageoilgas.com>, registered with Namecheap, 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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 24, 2019; the Forum received payment on January 24, 2019.
On January 24, 2019, Namecheap, Inc. confirmed by e-mail to the Forum that the <advantageoilgas.com> domain name is registered with Namecheap, Inc. and that Respondent is the current registrant of the name. Namecheap, Inc. has verified that Respondent is bound by the Namecheap, Inc. 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 February 5, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 25, 2019 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@advantageoilgas.com. Also on February 5, 2019, 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 February 28, 2019 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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 has rights in the ADVANTAGE OIL & GAS LTD name as it registered the name via a certificate of amalgamation in Alberta, Canada. Respondent’s <advantageoilgas.com> domain name is confusingly similar to Complainant’s ADVANTAGE OIL & GAS LTD name.
Respondent has no rights or legitimate interests in the <advantageoilgas.com> domain name. Respondent uses the domain name to display a spoofed version of Complainant’s own website. Further, Respondent uses the domain name to phish for personal information.
Respondent registered and uses the <advantageoilgas.com> domain name in bad faith. Respondent uses the domain name to spoof Complainant’s actual website. Additionally, Respondent uses the domain name to pass off as Complainant to further an email phishing scheme.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Lisa Tallim, Advantage Oil & Gas Ltd. (“Complainant”), of Calgary, Alberta, Canada. Complainant is the owner of a corporate registration for the name ADVANTAGE OIL & GAS LTD. Complainant submitted a certificate of amalgamation dated January 1, 2005 to show Complainant “is the legal holder of this name”.
Respondent is makay lee / makayltd (“Respondent”), of Delhi, India. The Panel notes that Respondent registered the <advantageoilgas.com> domain name on or about December 31, 2018.
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 Panel notes that Complainant does not make any specific arguments related to its alleged rights in the ADVANTAGE OIL & GAS LTD name. Complainant only claim rights in the ADVANTAGE OIL & GAS LTD name as registered for corporate purposes via a certificate of amalgamation filed in Alberta, Canada. An amalgamation is a process of two or more corporations combining their businesses to form a new corporation in Canada. The Canadian government provides filing documents for the process and accepts certificates of amalgamation as proof the process has been completed. <https://www.canada.ca/en/revenueagency/services/tax/businesses/topics/changes-your-business/amalgamation.html>. The certificate of amalgamation confers no trademark rights. A business name or trade name can also be registered as a trademark in Canada, but only if it is used in a trademark manner, namely as a designation of origin for certain goods and/or services. Complainant does not indicate that any steps have been taken in that regard. See Government of Canada/Canada Intellectual Property Office; <http://www.ic.gc.ca/eic/site/cipointernet-internetopic.nsf/eng/h_wr02360.html
The Panel further notes that Respondent does not make any arguments asserting or supporting any common law trademark rights in the name. The Panel finds that Complainant has not met the requirements of Policy ¶ 4(a)(i) because it has failed to establish rights in the mark. Complainant references only its business name registration. Complainant points to no local, domestic, national, or international registration of the name as a trademark. Complainant alleges no common law trademark rights and presents no proofs of inherent or acquired distinctiveness regarding the name. Thus, the Panel here finds this element has not been satisfied and therefore declines to analyze the other two elements of the Policy. See Netsertive, Inc. v. Ryan Howard / Howard Technologies, Ltd., FA 1721637 (Forum Apr. 17, 2017) (finding that because the complainant must prove all three elements under the Policy, the complainant’s failure to prove one of the elements makes further inquiry into the remaining element unnecessary); see also Wasatch Shutter Design v. Duane Howell / The Blindman, FA 1731056 (Forum June 23, 2017) (deciding not to inquire into the respondent’s rights or legitimate interests or its registration and use in bad faith where the complainant could not satisfy the requirements of Policy ¶ 4(a)(i)).
The Complainant has not satisfied this element.
The Panel declines to analyze this element.
The Panel declines to analyze this element.
Because Complainant has NOT established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be DENIED.
Accordingly, it is Ordered that the <advantageoilgas.com> domain name REMAIN WITH Respondent.
Darryl C. Wilson, Panelist
March 14, 2019
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page