DECISION

 

Terra Energy Holdings LLC v. Albert Nguyen

Claim Number: FA2311002069534

 

PARTIES

Complainant is Terra Energy Holdings LLC ("Complainant"), represented by David M. Kramer of Buchanan Ingersoll & Rooney, P.C., District of Columbia, USA. Respondent is Albert Nguyen ("Respondent"), California, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <terrep.com>, registered with NameCheap, Inc.

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 3, 2023; Forum received payment on November 3, 2023.

 

On November 4, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <terrep.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 November 6, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 27, 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@terrep.com. Also on November 6, 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.

 

On November 28, 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it is a privately-held oil and gas exploration and production company headquartered in Houston, Texas. Complainant was founded in early 2015 by Michael S. Land and a senior management team whose many decades of collective industry experience includes M&A, business development, engineering and operations leadership across multiple U.S. basins. In early 2016, Complainant's management partnered with Kayne Anderson and Warburg Pincus to acquire the WPX Energy Piceance Basin assets in Colorado for $910 million. Complainant currently produces over 500 MMcfe per day of natural gas and associated liquids and is one of the largest producers of natural gas in Colorado and one of the largest privately-held natural gas producers in the United States. Since at least as early as July 2015, Complainant has used the its marks in connection with management of business affairs and the commercial functions of an industrial or commercial enterprise in the fields of energy exploration and production, oil and gas well drilling, oil and gas production operations, oil and gas exploration, and analysis of oil and gas fields, among other related services. Complainant maintains a website at the domain name <www.terraep.com>. Complainant asserts rights in the marks TERRA ENERGY PARTNERS and TERRA through their registration in the United States in, respectively, 2017 and 2018.

 

Complainant alleges that the disputed domain name is confusingly similar to its TERRA ENERGY PARTNERS and TERRA marks because it consists of a misspelling of the TERRA portion of the marks (the letter "a" is omitted), merely adding letters "ep" (which stand for "energy partners") and the ".com" generic top-level domain ("gTLD").

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in its mark. 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, the disputed domain name resolves to a website comprised of links to third-party websites offering energy services competitive with or related to those of Complainant. Furthermore, the disputed domain name is being used, or is intended to be used, by Respondent to defraud Complainant's customers and/or business partners; specifically, the disputed domain name has been flagged as likely giving rise to fraud by the Client Fraud Prevention & Recoveries team at one of Complainant's banking partners.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website displays competing advertising hyperlinks and is used in furtherance of fraud. Respondent used a privacy shield.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark TERRA ENERGY PARTNERS and TERRA and uses them in connection with its oil and gas exploration and production business.

 

Complainant's rights in its marks date back to, respectively, 2017 and 2018.

 

The disputed domain name was registered in 2023.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The resolving website displays advertising links for products and services that compete with those of Complainant.

 

DISCUSSION

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."

 

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").

 

Identical and/or Confusingly Similar

The disputed domain name consists of a misspelling of the TERRA portion of Complainant's TERRA ENERGY PARTNERS and TERRA marks (the letter "a" is omitted), merely adding letters "ep" (which stand for "energy partners") and the ".com" generic top-level domain ("gTLD"). Including a trademark, or its dominant portion, even if misspelled, in a domain name, while adding generic terms or meaningless letters, does not distinguish the domain name from the mark under Policy ¶ 4(a)(i). See ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug. 2, 2017) ("Respondent's <workforce-now.com> domain name appropriates the dominant portion of Complainant's ADP WORKFORCE NOW mark and adds a hyphen and the gTLD ".com." These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark."); see also Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) ("The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant's marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain ("gTLD") '.com.'"); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also Home Depot Product Authority, LLC v. Angelo Kioussis, FA 1784554 (Forum June 4, 2018) ("The domain name contains the mark in its entirety, with only the addition of the generic letters 'sb' and the digits '2018,' plus the generic Top Level Domain ("gTLD") '.com.'  These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.").

 

According to 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Jurisprudential Overview 3.0"): "In specific limited instances, while not a replacement as such for the typical side-by-side comparison, where a panel would benefit from affirmation as to confusing similarity with the complainant's mark, the broader case context such as website content trading off the complainant's reputation, … may support a finding of confusing similarity."

 

Here, Complainant presents evidence showing that the resolving website displays advertising hyperlinks for services that compete with those of Complainant. This supports the side-by-side comparison above.

 

For all the above reasons, the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as "Albert Nguyen". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Complainant alleges that the disputed domain name is used in furtherance of fraud, but provides no evidence to support this allegation. Consequently the Panel finds that Complainant has failed to satisfy its burden of proof for this allegation and will not further discuss it.

 

The resolving website displays advertising hyperlinks for products and services that compete with those of Complainant. Use of a domain name to redirect users to unrelated third-party sites (whether or not they compete with Complainant) is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. SeeTrulia, Inc. v. Armen A, FA 1586491 (Forum Dec. 2, 2014) (finding that a parked page containing pay-per-click advertising links that resolve to the websites of Complainant's competitors did "not constitute a Policy ¶ 4(c)(i) bona fide offering of goods or services, or a Policy ¶ 4(c)(iii) legitimate noncommercial fair use"); see also Constellation Wines U.S., Inc. v. Tex. Int'l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also Coachella Music Festival, LLC v. josh greenly / All Access Tickets, FA 1629217 (Forum Aug. 10, 2015) (finding that the respondent had failed to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name as required under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii), where the respondent was using the disputed domain name to host a web page that featured links to services that competed with those of the complainant). For this reason also, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) and 4(c)(iii)). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent (who did not reply to Complainant's contentions) has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, the resolving website displays advertising links to products and services that compete with those of Complainant. Use of a disputed domain name to redirect consumers to competing goods or services can be evidence of bad faith disruption of a complainant's business under Policy ¶ 4(b)(iii) and an attempt to attract users for commercial gain under Policy ¶ 4(b)(iv). See Guidehouse LLP v. Zhi Chao Yang, FA 2013476 (Forum Oct. 31, 2022) ("[T]he resolving website displays advertising links to competing services. This constitutes bad faith registration and use under Policy ¶ 4(b)(iv)."); see also block.one v. Negalize Interactive Things, FA 1798280 (Forum Aug. 21, 2018) ("Offering links to competing products or services can demonstrate bad faith under Policy ¶ 4(b)(iii) where a respondent registers a domain name that is confusingly similar to the mark of another."); see also Capital One Financial Corp. v. DN Manager / Whois-Privacy.Net Ltd, FA 1615034 (Forum June 4, 2015) (holding that the respondent's use of the <capitaloneonebank.com> domain name to display links to the complainant's competitors, such as Bank of America, Visa, Chase and American Express constituted bad faith pursuant to Policy ¶ 4(b)(iv)); see also Capital One Financial Corp. v. Above.com Domain Privacy / Above.com Domain Privacy, FA 1598657 (Forum Feb. 20, 2015) ("This Panel agrees that Respondent's use as shown in Exhibits C-D illustrates that Respondent here seeks commercial gain through a likelihood of confusion, as competing hyperlinks have been found to establish evidence of intent to seek commercial gain through referral fees, and thus demonstrates bad faith registration under Policy ¶ 4(b)(iv)."). Therefore the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(b)(iii) and/or (iv).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <terrep.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: November 28, 2023