Chevron Intellectual Property LLC v. Dave Skeen / jay morningwood
Claim Number: FA2008001909955
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Fred W. Hathaway of DICKINSON WRIGHT PLLC, District of Columbia, USA. Respondents are Dave Skeen and jay morningwood (“Respondents”), Ohio, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <chevronpandemic.com> and <chevronrecruitment.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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 25, 2020, naming WhoisGuard, Inc. of Panama as sole respondent; the Forum received payment on August 25, 2020.
On August 26, 2020, NameCheap, Inc. confirmed by e-mail to the Forum that both domain names are registered with NameCheap, Inc., that Dave Skeen is the current registrant of the name <chevronpandemic.com> and that jay morningwood is the current registrant of the name <chevronrecruitment.com>. NameCheap, Inc. has verified that Respondents are bound by the NameCheap, Inc. registration agreement and have thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 26, 2020, the Forum invited Complainant to amend the Complaint and on August 28, 2020 Complainant submitted an Amended Complaint to the Forum electronically.
On August 31, 2020, the Forum served the Amended Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 21, 2020 by which Respondents could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondents’ registrations as technical, administrative, and billing contacts, and to postmaster@chevronpandemic.com and postmaster@chevronrecruitment.com. Also on August 31, 2020, the Written Notice of the Complaint, notifying Respondents of the e-mail addresses served and the deadline for a Response, was transmitted to Respondents via post and fax, to all entities and persons listed on Respondents’ registrations as technical, administrative and billing contacts.
On August 31, 2020 the Forum received an informal email from a representative of the registrant of the domain name <chevronrecruitment.com> denying ownership of the domain name <chevronpandemic.com>.
Having received no formal responses from Respondents, the Forum transmitted to the parties a Notification of Respondent Default.
On September 23, 2020, Complainant submitted to the Forum electronically an unsolicited Additional Submission.
On September 23, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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 Respondents.
Complainant requests that the domain names be transferred from Respondents to Complainant.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
In the instant proceedings, Complainant has alleged in its Complaint, its Amended Complaint and in its Additional Submission that the entities which control the domain names at issue are effectively controlled by the same person and/or entity, which is operating under several aliases.
Paragraph 3(c) of the Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder”. Paragraph 1(d) of the Forum's Supplemental Rules defines “The Holder of a Domain Name Registration” as “the single person or entity listed in the registration information, as verified by the Registrar, at the time of commencement” and sub-paragraph 1(d)(i) provides that a Complainant wishing to make an argument for a single Respondent having multiple aliases must comply with Supplemental Rules 4(c) and 17(a)(i).
The Panel notes that the registrant of the domain name <chevronrecruitment.com> denies ownership of the domain name <chevronpandemic.com>. Complainant contends, inter alia, that both domain names utilize the same privacy shield service and registrar and were registered one day apart from each other. However, the Panel determines that there is insufficient evidence to link the alleged aliases so as to justify a conclusion that the listed entities are jointly controlled.
Accordingly, pursuant to paragraph 4(c)(ii) of the Forum's Supplemental Rules, the Panel dismisses the Amended Complaint with respect to the domain name <chevronrecruitment.com> without prejudice and proceeds to consider the Amended Complaint in relation to the domain name <chevronpandemic.com>, registered by Dave Skeen, hereafter “Respondent”.
A. Complainant
Respondent does not have rights or legitimate interests in the <chevronpandemic.com> domain name because Respondent is not commonly known by the disputed domain name and is not authorized to use Complainant’s CHEVRON mark. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses the <chevronpandemic.com> domain name to further a fraudulent scheme.
Respondent registered and uses the <chevronpandemic.com> domain name in bad faith. Respondent holds itself out as being affiliated with Complainant in order to defraud consumers for commercial gain. Further, Respondent had actual knowledge of Complainant’s rights in the CHEVRON mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief in relation to the domain name <chevronpandemic.com>.
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 shown that it has rights in the CHEVRON mark based upon numerous registrations in many countries, including with the USPTO (e.g., Reg. No. 364,683, registered Feb. 14, 1939). Respondent’s <chevronpandemic.com> domain name is confusingly similar to Complainant’s CHEVRON mark since it wholly incorporates the mark, merely adding the generic term “pandemic” and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in a disputed domain name for the purposes of paragraph 4(a)(ii) of the Policy, i.e.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The domain name <chevronpandemic.com> was registered on July 23, 2020, many years after Complainant registered its CHEVRON trademark. Complainant claims that Respondent uses the <chevronpandemic.com> domain name to induce third parties to apply for pandemic assistance by providing Respondent with sensitive financial information. Prior to the filing of the Complaint, the domain name resolved to a website which displayed Complainant’s CHEVRON trademarks and mimicked Complainant’s legitimate website.
These circumstances, coupled with Complainant’s assertions, constitute a prima facie case that Respondent lacks rights and legitimate interests in the <chevronpandemic.com> domain name under Policy ¶ 4(a)(ii). Accordingly, the burden shifts to Respondent to show it does have rights or legitimate interests. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that Respondent has no rights or legitimate interests in respect of the <chevronpandemic.com> domain name under Policy ¶ 4(a)(ii).
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
Complainant submits that the <chevronpandemic.com> domain name is used to trick consumers into providing Respondent with sensitive financial information.
The Panel finds that the use by Respondent of the <chevronpandemic.com> domain name to resolve to a website displaying Complainant’s CHEVRON mark and mimicking Complainant’s website establishes beyond doubt that Respondent was well aware of Complainant’s CHEVRON mark when registering the domain name and has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with Complainant’s mark as to the source of Respondent’s website and of the services on his website. Thus, Respondent both registered and is using the <chevronpandemic.com> domain name in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy in relation to the domain name <chevronpandemic.com>, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chevronpandemic.com> domain name be TRANSFERRED from Respondent to Complainant and that the Complaint with respect to the domain name <chevronrecruitment.com> be dismissed without prejudice.
Alan L. Limbury, Panelist
Dated: September 27, 2020
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