Oracle International Corporation v. Monica Nitu / Oracle Africa Ops Africa Ops
Claim Number: FA2107001954989
Complainant is Oracle International Corporation (“Complainant”), represented by Steven M. Levy of FairWinds Partners LLC, District of Columbia, USA. Respondent is Monica Nitu / Oracle Africa Ops Africa Ops (“Respondent”), Alaska, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <oraecle.com>, <oraccle.org>, and <oraacle.org>, registered with Google LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 13, 2021; the Forum received payment on July 13, 2021.
On July 14, 2021, Google LLC confirmed by e-mail to the Forum that the <oraecle.com>, <oraccle.org>, and <oraacle.org> domain names are registered with Google LLC and that Respondent is the current registrant of the names. Google LLC has verified that Respondent is bound by the Google LLC 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 July 19, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 9, 2021 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@oraecle.com, postmaster@oraccle.org, postmaster@oraacle.org. Also on July 19, 2021, 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 August 12, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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.
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant alleges 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 for Uniform Domain Name Dispute Resolution Policy (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.” Complainant contends that all three domain names in the present dispute follow a similar naming pattern of adding one letter in typographical variations on the word “Oracle”, have very similar phishing emails, and none of the resolve to a single website. Further, the WHOIS information shows they the domain names were all registered within one day of each other with the same registrar using false addresses. Finally, each of the emails used with each of the domain names have the same subject line and the name “Monica”.
While it is possible that the underlying registrants may or may not differ nominally, they clearly appear to be related to, or controlled by, the same person, persons, or entity. Moreover, Complainant’s contention regarding the common control of the at-issue domain names and its request that the domain names’ registrants be treated as a single entity in the instant proceeding are unopposed. Therefore, the Panel will treat the domain names’ registrants as a single entity for the purposes of this proceeding.
A. Complainant
Complainant contends as follows:
Complainant, Oracle International Corporation, is one of the world’s largest marketers of enterprise software products and services, cloud data storage, and computer hardware systems.
Complainant maintains registration of its ORACLE mark with the United States Patent and Trademark Office (“USPTO”) and other authorities around the world.
The at-issue domain names, <oraecle.com>, <oraccle.org>, and <oraacle.org> are each identical or confusingly similar to Complainant’s ORACLE mark because each of the domain names incorporate an extra letter, “c,” “a,” or “e,” and the “.org” or “.com” generic top-level domain (“gTLD”) to form the domain names.
Respondent does not have rights or legitimate interests in the at-issue domain names because Respondent is not commonly known by the domain names nor has Respondent received authorization to use the ORACLE mark. Respondent is not using the domain names in connection with a bona fide offering of goods or services nor for a legitimate noncommercial or fair use because Respondent uses the at-issue domain names to pass itself off as Complainant in furtherance of a phishing scheme via email communications directed at Complainant’s customers to seek payment. Furthermore, Respondent has not made any demonstrable preparations to use the domain names because each domain name addresses an inactive website.
Respondent registered and uses the at-issue domain names in bad faith because Respondent uses such domain names to pass itself off as Complainant via email communications with Complainant’s customers in furtherance of a phishing scheme. Further bad faith is found through Respondent’s inactive use of the domain names, Respondent providing false information at the time of the registration of the domain names, Respondent’s failure to respond to Complainant’s cease and desist communications, and Respondent’s use of a privacy service to conceal its identity. Finally, Respondent acted with actual knowledge of Complainant’s rights in the ORACLE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the ORACLE mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the ORACLE trademark.
Respondent uses the at-issue domain names to pose as Complainant in furtherance of an email based phishing scheme.
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”).
The at-issue domain names are each confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the ORACLE mark with the USPTO demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Additionally, Respondent’s <oraecle.com>, <oraccle.org>, and <oraacle.org> domain names each consist of Complainant’s ORACLE trademark with an additional character inserted. Under the Policy the differences between Respondent’s domain names and Complainant’s trademark do nothing to distinguish any of the domain names from Complainant’s mark. Therefore, the Panel concludes that Respondent’s <oraecle.com>, <oraccle.org>, and <oraacle.org> domain names are each confusingly similar to Complainant’s ORACLE trademark. See Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum Aug. 18, 2015) (finding that the <blankofamerica.com> domain name contains the entire BANK OF AMERICA mark and merely adds the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank.’).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of each at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of either at-issue domain name.
The WHOIS information lists “Monica Nitu” as the registrant of the <oraecle.com> and <oraacle.org> domain names and “Oracle Africa Ops Africa Ops” as the registrant of the <oraccle.org> domain name. The Panel has found that these registrants may be treated as if a single entity and are collectively referred to as Respondent herein. There is nothing in the record before the Panel that indicates that Respondent, or any of the nominal domain name registrants, is known by any of the <oraecle.com>, <oraccle.org>, and <oraacle.org> domain names. Given the foregoing, the Panel finds that Respondent is not commonly known by any at-issue domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent uses the <oraecle.com>, <oraccle.org>, and <oraacle.org> domain names to pass itself off as Complainant in connection with a phishing scheme. Such use is not indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”); see also, Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of each at-issue domain name.
Respondent’s <oraecle.com>, <oraccle.org>, and <oraacle.org> domain names were each registered and used in bad faith. As discussed below without limitation, bad faith circumstances are present that compel the Panel to conclude that Respondent acted in bad faith regarding each domain name pursuant to paragraph 4(a)(iii) of the Policy.
As mentioned above with regard to rights and legitimate interest, Respondent uses the at-issue domain names to pass itself off as Complainant so as to facilitate an email phishing scheme. No content is addressed by the domain names. Respondent instead, via email from the at-issue domain names, pretends to be an employee of Complainant and requests customers to submit payment according to Respondent’s instructions. Respondent’s use of the at-issue domain names thus shows Respondent’s bad faith under Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).
Additionally, Respondent registered the <oraecle.com>, <oraccle.org>, and <oraacle.org> domain names knowing that Complainant had trademark rights in ORACLE. Respondent’s prior knowledge is evident from the notoriety of Complainant’s trademark, from the registration of multiple domain names containing Complainant’s mark, and from Respondent’s use of the domain names to attempt to extract funds from third-parties as discussed elsewhere herein. The Panel thus finds that Respondent intentionally registered the at-issue domain names to improperly exploit their trademark value, rather than for some benign reason. Respondent’s prior knowledge of Complainant's trademark shows that Respondent registered and used its <oraecle.com>, <oraccle.org>, and <oraacle.org> domain names in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Victoria’s Secret Stores Brand Mgmt., Inc. v. Michael Bach, FA 1426668 (Forum Mar. 2, 2012) (“Although Complainant has not submitted evidence indicating actual knowledge by Respondent of its rights in the trademark, the Panel finds that, due to the fame of Complainant’s [VICTORIA’S SECRET] mark, Respondent had actual notice at the time of the domain name registration and therefore registered the domain name in bad faith under 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 <oraecle.com>, <oraccle.org>, and <oraacle.org> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 13, 2021
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