Chevron Phillips Chemical Company, L.P. v. Ning Yan / Wanuk Trucking
Claim Number: FA1910001867787
Complainant is Chevron Phillips Chemical Company, L.P. (“Complainant”), represented by John C. Cain of Fleckman & McGlynn, PLLC, Texas, USA. Respondent is Ning Yan / Wanuk Trucking (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cp-chem.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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 21, 2019; the Forum received payment on October 21, 2019.
On October 21, 2019, NameCheap, Inc. confirmed by e-mail to the Forum that the <cp-chem.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 October 22, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 12, 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@cp-chem.com. Also on October 22, 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 November 14, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 relies on its rights in its CPCHEM trademark acquired through its ownership of the U.S. trademark registration number 3.018,435, registered on November 22, 2005 described below and its claimed rights in the mark acquired through the goodwill established by its claimed use of the CPCHEM mark on its petrochemical products since November 2001.
Complainant explains that its trademark CPCHEM is a shortened version of “Chevron Phillips Chemical,” and has been adopted by Complainant as its mark designating the source of a wide variety of goods and services including chemical additives, gasoline and diesel fuels, drilling fluids, raw plastics, and plastic pipe.
Complainant asserts that it has spent millions of dollars advertising and promoting its goods and services under the CPCHEM Mark around the world. As a result of those efforts and Complainant’s long use of the CPCHEM Mark, customers recognize the mark as a designation that identifies and distinguishes the quality products and services that Complainant offers.
Complainant further alleges that Respondent has no rights or legitimate interests in the disputed domain name. Complainant asserts that its rights have priority in time as Complainant has used its CPCHEM mark since at least as early as 2001 and Complainant obtained U.S. registration of its CPCHEM mark in 2005, long prior to any relevant use by Respondent. The WHOIS database indicates that Respondent did not register the disputed domain name until July 2019.
Complainant asserts that Complainant has not licensed or otherwise authorized Respondent to use the CPCHEM mark; Respondent is not in any way affiliated with Complainant; and Respondent registered the domain name without Complainant’ knowledge or permission.
Complainant submits that on information and belief: before any notice of this dispute, Respondent did not use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; that Respondent has not been commonly known by the disputed domain name; that the disputed domain name was registered on the same day that one of Complainant’s vendors started to receive fraudulent emails using the disputed domain name address; that Respondent is not making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers. Complainant adds that Respondent’s use of a disputed domain name confusingly similar to the CPCHEM mark suggests sponsorship or approval by Complainant, negating any “fair use.”
Complainant submits that it has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that the disputed domain name was registered and is being used in bad faith. Complainant’s U.S. registration of its CPCHEM mark issued in 2005 which was 14 years before Respondent registered the disputed domain name in 2019. Complainant’ registration provided Respondent with constructive notice of Complainant’ CPCHEM mark. Even aside from the U.S. registration, the CPCHEM mark is extensively advertised and well-known in the petrochemicals industry.
Complainant recently became aware of Respondent’s registration of the domain name <cp-chem.com> as a result of an attempted email scam when the disputed domain name was used in an attempted spear phishing attack where the whole point was to impersonate a Complainant employee with a “cpchem.com” email address. On July 29, 2019, an unknown person posing as a Complainant employee sent an email to a vendor of Complainant’s goods providing fraudulent bank account information. The “reply to” email address differed from the email address of the actual Complainant employee by only one letter: instead of the domain name <cpchem.com>; the fake email address used the disputed domain name <cp-chem.com>. A similar follow-up email was sent the following day. Complainant has furnished copies of these emails with redactions and alleges that this is a common type of email scam known as “spear phishing.”
Investigation by Complainant and its counsel revealed that the disputed domain name had been registered on July 29, 2019, the same day the first fraudulent email was sent. As of October 21, 2019, there was no active website at that domain name.
Complainant alleges that Respondent registered the disputed domain name for the primary purpose of the fraudulent spear phishing scheme. However, the domain name is now parked at a website that still appears to relate to Complainant with several references to “Chevron” and “Phillips” and the types of products that Complainant provides and that presumably results in click-through revenues to Respondent.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a manufacturer of petrochemical products and is the owner of U.S. trademark registration number 3.018,435 registered on November 22, 2005 for goods in international classes 1, 3, 4 and 17.
Complainant owns and uses the domain name and website <cpchem.com> promoting its goods and services.
In the absence of a Response, the only information available about Respondent is that provided in the Complaint, the Registrar’s WhoIs and the information provided by the Registrar in response to the Forum’s request for verification of the status of the disputed domain name.
The disputed domain name <cp-chem.com> was registered on July 29, 2019 and resolves to a website which has no active content except for what appear to be sponsored links to web content offering goods that are the same as Complainant’s products. The links include references to “Chevron” and “Phillips” and the types of products that Complainant. The unchallenged evidence of Complainant establishes on the balance of probabilities that the disputed domain name has been used as an email address for communications which on were an attempt to perpetrate a phishing scam.
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 set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has produced unchallenged evidence of its rights in the CPCHEM trademark acquired through its ownership of U.S. trademark registration number 3.018,435, registered on November 22, 2005 and the goodwill established in the mark by its use of the CPCHEM mark on its petrochemical products since November 2001.
The disputed domain name Complainant alleges that the disputed domain name <cp-chem.com> is almost identical to Complainant’s trademark as it differs by a single element, namely the addition of a hyphen between the letters “cp” and “chem”. As Complainant alleges, this is likely to overlooked by Internet users who will probably believe that Respondent’s domain name is sponsored by, approved by, or affiliated with Complainant.
This Panel finds that the disputed domain name is confusingly similar to Complainant’s CPCHEM trademark and Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i).
On the evidence adduced and unchallenged, the disputed domain name was registered fourteen years after Complainant established its rights in the CPCHEM mark. It is improbable that the registrant was unaware of Complainant, its CPCHEM trademark, its <cpchem.com> domain name and the website to which Complainant’s <cpchem.com> domain name resolves when the disputed domain name <cp-chem.com> was chosen and registered.
Given the marked similarity between the disputed domain name and Complainant’s trademark and domain name, on the balance of probabilities the disputed domain name was registered to create confusion with Complainant’s mark.
Complainant has provided ample evidence to allow this Panel to conclude on the balance of probabilities that the disputed domain name has been used in bad faith in order to perpetrate a phishing scam by using the domain name to create the false impression that Complainant was the source of emails.
This Panel finds therefore that on the balance of probabilities, the disputed domain name was registered and is being used in bad faith. Complainant has therefore succeeded in the third and final element of the test in Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cp-chem.com> domain name be TRANSFERRED from Respondent to Complainant.
______________________________
James Bridgeman SC
Panelist
Dated: November 15, 2019
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