Chevron Intellectual Property LLC v. Black Box Enriquez
Claim Number: FA2010001917236
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Fred W. Hathaway of DICKINSON WRIGHT PLLC, United States. Respondent is Black Box Enriquez (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chevrorl.com>, registered with Hosting Concepts B.V. d/b/a Openprovider.
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 16, 2020; the Forum received payment on October 16, 2020.
On October 19, 2020, Hosting Concepts B.V. d/b/a Openprovider confirmed by e-mail to the Forum that the <chevrorl.com> domain name is registered with Hosting Concepts B.V. d/b/a Openprovider and that Respondent is the current registrant of the names. Hosting Concepts B.V. d/b/a Openprovider has verified that Respondent is bound by the Hosting Concepts B.V. d/b/a Openprovider 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 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 10, 2020 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@chevrorl.com. Also on October 21, 2020, 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 11, 2020, 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights in the CHEVRON trademark acquired by its ownership of the portfolio of trademark registrations described below together with its use of the mark in its international energy business.
Complainant states that it adopted “Chevron” as its corporate name in the 1970’s and claims use of its CHEVRON trademark dating back to 1935. Complainant asserts that, together with its parent company, it is one of the world's leading integrated energy companies with a global workforce of over 50,000 company employees and 3,500 service station employees, maintaining a significant presence in North America, with its world headquarters in California. Complainant also has major corporate offices in Texas, Pennsylvania, and Louisiana; it operates refineries in California, Utah and Mississippi; and has exploration and production across the United States. Complainant adds that its parent company’s business activities are carried out under the name “Chevron Corporation” and Complainant’s parent is well known by that name.
Complainant further submits that within Complainant’s website, <www.chevron.com>, there is information about its business and subsidiaries, information related to Complainant’s prominence and US operations in Houston, Texas, as well as information related to Complainant’s CHEVRON, TEXACO, and CALTEX brands.
Complainant asserts that its CHEVRON mark appears prominently in advertising and promotional materials, including but not limited to newspapers, magazines, television, and online, which Complainant places at a cost of tens of millions of US dollars per year.
Complainant alleges that the disputed domain name <chevrorl.com> is confusingly similar to the CHEVRON mark in which it has rights, submitting that the registrant merely intentionally adopted a subtle, two-letter misspelling of Complainant’s famous CHEVRON mark by substituting the “n” at the end of CHEVRON with the letters “rl”. Complainant argues that notwithstanding this substitution, the disputed domain name retains a nearly identical visual identity to the CHEVRON mark. This is because, when typed in lower case lettering, the combination of “rl” is visually highly similar to the letter “n.”
Complainant submits that under similar circumstances, where a misspelled domain name retains a high degree of visual similarity with a complainant’s mark, panels have consistently found confusing similarity. See, e.g. . Garmin Switzerland GmbH v. Cash Mone / Bestinrnarknet. FA2003001889400 (Forum Apr. 20, 2020) (holding that replacing the complainant’s GARMIN mark with “two adjacent letters ‘nn’ [in the disputed domain <gamnin.com> to] give an appearance which is easily confused with the letter ‘m’” was sufficient to show the disputed domain is confusingly similar to complainant’s mark under Policy ¶ 4(a)(i)).
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name arguing that Complainant has not authorized, consented to, or approved Respondent to register or use the disputed domain name and neither Respondent nor the schemes perpetrated by Respondent associated with the disputed domain name are affiliated with, associated with, or otherwise endorsed by Complainant.
Complainant submits that unlicensed, unauthorized use of a domain name that incorporates a complainant’s trademarks is strong evidence that a respondent has no rights or legitimate interest in the domain name. See, e.g., Time Warner Inc. v. MLM Capital LLC d/b/a Domains, FA1076561 (Forum Oct. 26, 2007); Fair Isaac Corp. v. Michele, FA1486147 (Forum Mar. 30, 2013) (“Respondent could not have developed any rights in the FICO [m]ark, unless [c]omplainant licensed the FICO mark to [r]espondent or otherwise allowed [r]espondent to use it.”).
Complainant asserts that on information and belief, Respondent is not commonly known by the disputed domain name or any name containing the CHEVRON marks. As shown in the Whois record in connection with the disputed domain name, a copy of which is exhibited in an annex to the Complaint, the registrant is not known by the disputed domain name or Complainant’s mark.
Complainant researched the disputed domain name and can confirm that it is not owned or controlled by Complainant. Emerson Electric Co. v. golden humble / golden globals, FA1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
Additionally, Complainant alleges that Respondent has no rights or legitimate interest in the disputed domain name <chevrorl.com> because Respondent is engaged in the act of intentionally typosquatting Complainant’s famous CHEVRON mark and email address. Prior panels have found that acts of typosquatting demonstrate a lack of rights or legitimate interest in a domain name under Policy ¶ 4(a)(ii). Morgan Stanley v. james kolo, FA1868471 (Forum Nov. 24, 2019) (finding evidence that respondent engaged in an intentional misspelling of complainant’s mark, and therefore, respondent had no rights or legitimate interest in the disputed domain name as respondent was typosquatting).
Moreover, Complainant argues that 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 because it is using the disputed domain name in a fraudulent email scheme described below. Complainant alleges that Respondent is engaged in typosquatting and phishing which cannot be considered a fair use of the disputed domain name.
Complainant argues that Respondent registered the disputed domain name <chevrorl.com> in bad faith on September 28, 2020, well after Complainant established strong enforceable rights in the CHEVRON mark, and secured registrations around the world for the same.
Complainant submits that at the time the Complaint was filed, the identity of the registrant of the disputed domain name was privacy protected in the WhoIs records. After the Complaint was filed, the Registrar revealed the identity of the registrant to be “Black Box Enriquez” and the associated postal address.
Complainant submits that the disputed domain name does not currently resolve to a webpage but that Respondent is using the disputed domain name in connection with associated e-mail accounts (_____@chevrorl.com) in furtherance of a fraudulent email scheme created by the Respondent.
Referring to exhibits annexed to the Complaint, Complainant submits that Respondent’s use of the disputed domain name <chevrorl.com> is an integral part of this fraudulent scheme created by Respondent to send false, unauthorized solicitations to third parties and Complainant employees under a false claim of communications coming from an actual employee of Chevron.
Complainant submits that these fraudulent email accounts look nearly identical to Complainant’s email accounts at its <chevron.com> address. Complainant alleges that Respondent is using the disputed domain name to mislead the email recipient and further alleges that in so doing, Respondent, falsely masquerades as a representative of Complainant, specifically as the Business Consultant of National Accounts. The emails sent using the disputed domain name to third parties and Complainant’s own employees, request the recipients to provide confidential financial account information as well as payments for significant sums of money to be placed into the Respondent’s account.
To further its attempt at deception of these email recipients, Respondent has also included Complainant’s CHEVRON mark as well as Complainant’s TEXACO and CALTEX hallmark logos, at the bottom of the email signature block, referring to the location of Houston, Texas which is one of Complainant’s prominent business locations for its US operations.
Complainant adds that Respondent has even gone so far as to send the emails masquerading as actual Chevron employees, whose names have been redacted from the exhibits annexed to the Complaint due to confidentiality concerns, to fellow employees of Complainant inquiring about the confidential financial account information and payments.
Complainant further states that upon becoming aware of these fraudulent emails, Complainant was successfully able to temporarily suspend the disputed domain name associated with these email accounts (____@chevrorl.com) through a takedown request.
Complainant concludes by reasserting that it has no connection with Respondent and disassociates itself from Respondent’s bad faith activity.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is an integrated energy company, carrying on an international business using both the CHEVRON and TEXACO marks for which it owns a large international portfolio of registered trademarks among the earliest of which include:
· United States registered trademark CHEVRON, registration number 0364683, registered on February 14, 1939, presently on the Principal Register for goods in international class 4;
· United States registered trademark TEXACO, registration number 0057902, registered on October 9, 1906, presently on the Principal Register for goods in international class 4.
Complainant has an established Internet presence and hosts its main website at <www.chevron.com>.
The disputed domain name was registered on September 28, 2020 and is being used for an email account to send out emails purporting to impersonate Complainant and its employees.
There is no information available about Respondent except for that provided in the Complaint, the Registrar’s WhoIs and the information provided by the Registrar in response to the enquiry by the Forum requesting details of the registration of the disputed domain name. Respondent availed of a privacy service to conceal its identity on the published WhoIs.
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 clear, convincing and uncontested evidence of its rights in the CHEVRON trademark acquired by its ownership of the portfolio of trademark registrations described above and its long and extensive international its use of the mark in its international energy business including on its website to which its <chevron.com> resolves.
The disputed domain name <chevrorl.com> is what Complainant correctly describes as a subtle, two-letter misspelling of Complainant’s famous CHEVRON mark, substituting the “n” at the end of CHEVRON with the letters “rl”, in combination with the generic Top-Level Domain extension (“gTLD”) <.com>.
When typed in lower case lettering, the combination of “rl” is visually highly similar to the letter “n” and for the purposes of evaluating confusing similarity the gTLD <.com> extension may be ignored in the circumstances of this Complaint because as a top level domain extension, it would be recognized as a technical necessity for a domain name and serves no other purpose or meaning in the context.
This Panel finds therefore that the disputed domain name is confusingly similar to the CHEVRON trademark in which Complainant has rights and Complainant has succeeded in the first element of the test in Policy ¶ 4(a)(i)
Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name arguing
· that Complainant has not authorized, consented to or approved Respondent to register or use the disputed domain name;
· that neither Respondent nor the schemes perpetrated by Respondent associated with the disputed domain name are affiliated with, associated with, or otherwise endorsed by Complainant;
· that unlicensed, unauthorized use of a domain name that incorporates a complainant’s trademarks is strong evidence that a respondent has no rights or legitimate interest in the domain name;
· that upon information and belief, Respondent is not commonly known by the disputed domain name or any name containing the CHEVRON mark;
· that the WhoIs record in connection with the disputed domain name makes no mention of the registrant being known by the disputed domain name or the CHEVRON mark;
· that Complainant having carried out enquiry, can confirm that the disputed domain name is not owned or controlled by Complainant;
· that Respondent is engaged in the act of intentionally typosquatting Complainant’s famous CHEVRON mark and email address;
· that Respondent is using the disputed domain name in a fraudulent email scheme described below; and
· that such activity cannot be considered use in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name.
It is well established that if Complainant makes out a prima facie case, the burden of production shifts to Respondent to prove his rights or legitimate interests in the disputed domain name.
Respondent has failed to file any Response to the Complaint or provide any defense to Complainant’s allegations and so has not discharged the burden. In the circumstances this Panel must find that on the balance of probabilities Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii).
The disputed domain name was registered on September 28, 2020, well after Complainant established strong enforceable rights in the CHEVRON mark and secured the abovementioned portfolio of trademark registrations. It is most improbable that the registrant of the disputed domain name was unaware of Complainant, its name and mark when the disputed domain name was chosen and registered. The evidence shows that on the balance of probabilities the disputed domain name has been registered in bad faith in an act of typosquatting in order to take predatory advantage of the similarity between the disputed domain name and Complainant’s name and mark.
The evidence shows that the disputed domain name does not currently resolve to a webpage but that Respondent is using the disputed domain name <chevrorl.com> in connection with associated e-mail accounts (_____@chevrorl.com) in furtherance of a fraudulent email scheme created by the Respondent.
The copy email correspondence adduced in uncontested evidence in annexes the Complainant prove on the balance of probabilities that Respondent is using the disputed domain name in bad faith to impersonate Complainant and its employees. The emails demonstrate phishing activity by Respondent purporting to confuse and deceive email recipients who are misled into the belief that they are receiving genuine emails from Complainant and its employees.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has therefore succeeded in the third element of the test in Policy ¶ 4(a)(iii) and is entitled to the remedy requested in the Complaint.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <chevrorl.com> domain name be TRANSFERRED from Respondent to Complainant.
____________________________________
James Bridgeman SC
Panelist
Dated: November 12, 2020
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