Chevron Intellectual Property LLC v. Jason Brady
Claim Number: FA2004001890845
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Fred W. Hathaway of DICKINSON WRIGHT PLLC, District of Columbia, United States. Respondent is Jason Brady (“Respondent”), Alabama, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chevronoilaustralia.com>, registered with Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji.
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.
Darryl C. Wilson, as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 2, 2020; the Forum received payment on April 2, 2020.
On April 3, 2020, Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji confirmed by e-mail to the Forum that the <chevronoilaustralia.com> domain name is registered with Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji and that Respondent is the current registrant of the name. Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji has verified that Respondent is bound by the Atak Domain Hosting Internet ve Bilgi Teknolojileri Limited Sirketi d/b/a Atak Teknoloji 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 April 10, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 30, 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@chevronoilaustralia.com. Also on April 10, 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 May 4, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Darryl C. Wilson 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.
A. Complainant
Complainant, Chevron Intellectual Property LLC, is one of the world's leading fully integrated energy companies. Complainant has rights in the CHEVRON mark based upon the registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 364,683, registered Feb. 14, 1939). Respondent’s <chevronoilaustralia.com> domain name is confusingly similar to Complainant’s CHEVRON mark as Respondent merely adds the generic term “oil,” the geographic term “australia” and the “.com” generic top-level domain (“gTLD”) to the mark.
Respondent does not have rights or legitimate interests in the <chevronoilaustralia.com> domain name. Respondent is not licensed or authorized to use Complainant’s CHEVRON mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the <chevronoilaustralia.com> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent fails to make an active use of the disputed domain name. In addition, Respondent uses the disputed domain name to impersonate Complainant in furtherance of a fraudulent, phishing scheme.
Respondent registered and uses the disputed domain name in bad faith. Respondent attempts to disrupt Complainant’s business by impersonating Complainant as part of an email phishing scheme. Finally, Respondent must have had actual and/or constructive knowledge of Complainant’s CHEVRON mark prior to registering the <chevronoilaustralia.com> domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Chevron Intellectual Property LLC (“Complainant”), of San Ramon, CA, USA. Complainant is the owner of domestic and global registrations for the mark CHEVRON and numerous variations thereof constituting the family of CHEVRON marks. Complainant has used its mark(s) continuously since at least as early as 1939 in connection with its provision of goods and services involving oil and gas exploration, and the development and distribution of petroleum products.
Respondent is Jason Brady (“Respondent”), of Mobile AL, USA. Respondent’s registrar’s address is listed as Izmit, Turkey. The Panel notes that the <chevronoilaustralia.com> domain name was registered on or about November 1, 2019.
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 claims rights in the CHEVRON mark based upon registration with the USPTO. Registration with the USPTO sufficiently establishes 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)). Complainant provides a list and copies of its USPTO registrations for the CHEVRON mark (e.g., Reg. No. 364,683, registered Feb. 14, 1939). The Panel here finds that Complainant has rights in the CHEVRON mark per Policy ¶ 4(a)(i).
Complainant next claims that Respondent’s <chevronoilaustralia.com> domain name is confusingly similar to Complainant’s CHEVRON mark as Respondent merely adds a modifier and a gTLD to the mark. Additions of generic and/or geographic terms and a gTLD to a complainant’s mark does not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Doosan Corporation v. philippe champain, FA 1636675 (Forum Oct. 13, 2015) (finding that geographic designations or terms descriptive of a complainant’s business operations do not remove a domain name from the realm of confusing similarity.); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Complainant argues Respondent merely adds the generic term “oil,” the geographic term “australia” and a “.com” gTLD to Complainant’s CHEVRON mark. The Panel here finds that the <chevronoilaustralia.com> domain name does not contain changes that sufficiently distinguish it from the CHEVRON mark per Policy ¶ 4(a)(i).
Respondent raises no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel notes that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
The Panel here finds that Complainant has set forth the requisite prima facie case.
Complainant argues that Respondent has no rights or legitimate interests in the <chevronoilaustralia.com> domain name. Specifically, Complainant argues Respondent is not licensed or authorized to use the CHEVRON mark and is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark.). Additionally, lack of authorization to use a complainant’s mark may demonstrate the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information of record identifies Respondent as “Jason Brady,” and there is no other evidence provided to indicate Respondent was authorized to use the CHEVRON mark or is commonly known by the disputed domain name. The Panel here finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Moreover, Complainant argues that Respondent is not using the <chevronoilaustralia.com> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent fails to make an active use of the disputed domain name. Failure to make active use of a domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or (iii). See Michelin North America, Inc. v. Energie Media Group, FA 451882 (Forum Aug. 7, 2012). In Michelin North, the panel found that inactive use, or “passive holding,” of the disputed domain name by a respondent “permits the inference that [the respondent] lacks rights and legitimate interests in the domain names.” Here, Complainant argues that the disputed domain name resolves to an inactive webpage which currently features an “Error” notice. The Panel here finds that Respondent’s use does not amount to a bona fide offering or good or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).
In addition, Complainant claims Respondent attempts to impersonate Complainant as part of a fraudulent scheme. Use of an email address associated with the disputed domain name to pass off as a complainant in furtherance of phishing is not indicative of rights or legitimate interests in the name per Policy ¶¶ 4(c)(i) or (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”). Here, Complainant claims Respondent uses an email address associated with the disputed domain name as part of a fraudulent scheme. Respondent is falsely acting as an “HR Executive” named Gita Ehsan, emailing third parties concerning career and interview opportunities. Complainant provides emails sent by Respondent concerning this alleged phishing scheme. The Panel here finds that Respondent’s use of the disputed domain name to send deceptive emails supports the conclusion that Respondent lacks rights and legitimate interests in the disputed domain name per Policy ¶¶ 4(c)(i) and (iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(ii).
The Complainant has proven this element.
Complainant argues that Respondent has registered and uses the <chevronoilaustralia.com> domain name in bad faith. Complainant alleges Respondent attempts to disrupt Complainant’s business. Specifically, Complainant argues Respondent is attempting to impersonate Complainant as part of an email phishing scheme, presumably for commercial gain. Use of a domain name to impersonate a complainant in furtherance of a fraudulent scheme may constitute bad faith pursuant to Policy ¶ 4(b)(iii) and/or (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith). As previously mentioned, Complainant claims Respondent uses an email address associated with the disputed domain name to impersonate Complainant and send phishing e-mails to third parties concerning career and interview opportunities, presumably designed to solicit information under false pretenses. Complainant has provided unrefuted evidence of the alleged emails. The Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶¶ 4(b)(iii) and (iv).
Finally, Complainant argues that Respondent registered the disputed domain name with actual and/or constructive knowledge of Complainant’s mark. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). Complainant asserts, Respondent registered the disputed domain name using Complainant’s famous mark with an additional term implying a connection with Complainant as well as sending emails related to online job interviews and employment opportunities, including direct reference to an alleged HR executive with Complainant, strongly shows that Respondent had actual knowledge of Complainant and its mark. The Panel here finds that Respondent had actual knowledge of Complainant’s rights in the CHEVRON mark prior to registering the <chevronoilaustralia.com> domain name, thereby supporting a finding of bad faith registration and use under Policy ¶ 4(a)(iii).
Respondent raises no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
As the Complainant has established all three elements required under the ICANN Policy, the Panel concludes that Complainant’s requested relief shall be GRANTED.
Accordingly, it is Ordered that the <chevronoilaustralia.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: May 18, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page