Exxon Mobil Corporation v. Mario Joseph
Claim Number: FA2307002054136
Complainant is Exxon Mobil Corporation (“Complainant”), represented by Danae T. Robinson of Pirkey Barber PLLC, Virginia, USA. Respondent is Mario Joseph (“Respondent”), Egypt.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <exxonmobilbunkering.com>, registered with Domain.com, LLC.
The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to Forum electronically on July 21, 2023; Forum received payment on July 21, 2023.
On July 21, 2023, Domain.com, LLC confirmed by e-mail to Forum that the <exxonmobilbunkering.com> domain name is registered with Domain.com, LLC and that Respondent is the current registrant of the name. Domain.com, LLC has verified that Respondent is bound by the Domain.com, 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 24, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 14, 2023 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@exxonmobilbunkering.com. Also on July 24, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default. Complainant did however send emails to Forum, see below.
On August 15, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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(s) be transferred from Respondent to Complainant.
A. Complainant
Complainant states that, for more than 135 years, it and its predecessors in interest have engaged in the world-wide manufacture, marketing, distribution, and sale of high-quality petroleum products and services, including gasoline, diesel, lubricants, motor fuels, chemical products, and other related products and services, in association with trademarks consisting of or incorporating EXXON, MOBIL, and EXXONMOBIL. Complainant and its predecessors have developed an extensive network of licensees and sub-licensees who manufacture, market, distribute and sell authorized products and services throughout the world in over 10,000 fuel stations. Complainant also provides branded credit cards and debit cards in connection with its branded stations. In addition to automotive gasoline and diesel fuel, Complainant produces aviation and marine fuels. Complainant is also one of the largest lubricant suppliers in the United States. For 2022, Complainant is ranked 3rd on the Fortune 500 list. Complainant asserts rights in the mark EXXONMOBIL through its registration in the United States in 2003. The mark is famous.
Complainant alleges that the disputed domain name is essentially identical and confusingly similar to its EXXONMOBIL mark because it incorporates the mark in its entirety and merely adds the generic/descriptive term “bunkering”. Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not licensed or otherwise authorized to use Complainant’s mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Instead, Respondent is using the disputed domain name to facilitate a fraudulent phishing scheme to trick consumers into providing sensitive financial information to Respondent. As a part of this scheme, Respondent has used the disputed domain name to create at least one email account to impersonate Complainant and send emails from that email address instructing consumers to pay fake invoices that consumers believe were issued by Complainant: the fraudulent invoices display Complainant’s mark and logo. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith because it is used to impersonate Complainant, orchestrate an email phishing scheme, and conduct fraudulent business transactions with third parties. Respondent engages in phishing. Respondent knew of Complainant’s mark before registering the disputed domain name. Respondent used a privacy service. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its emails to Forum Respondent states, in pertinent part (emphasis added): “We accept for rule no 11 as per attached [the Certification clause of the Complaint, whose text is specified in Rule 3(b)(xiii)] not need the domain longer and valid with us, can transfer to ExxonMobil.”
For the reasons given below, the Panel will not make any findings of fact. The Panel however notes, obiter dictum, that the evidence presented by Complainant appears to substantiate its allegations.
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.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Preliminary Issue: Consent to Transfer
The Panel interprets Respondent’s email to Forum as consent to transfer the disputed domain name. Thus, in the present case, the parties have both asked for the domain name to be transferred to the Complainant. In accordance with a general legal principle governing arbitrations as well as national court proceedings, this Panel holds that it cannot act nec ultra petita nec infra petita, that is, that it cannot issue a decision that would be either less than requested, nor more than requested by the parties. Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.
See Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004); see also Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
For the reasons set forth above, the Panel will not analyze this element of the Policy.
Given the common request of the Parties, it is Ordered that the <exxonmobilbunkering.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: August 15, 2023
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