Chevron Intellectual Property LLC v. Zhichao Yang
Claim Number: FA2006001899809
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Fred W. Hathaway of DICKINSON WRIGHT PLLC, United States. Respondent is Zhichao Yang (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com>, registered with Alibaba Cloud Computing (Beijing) Co., Ltd..
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 10, 2020; the Forum received payment on June 10, 2020. The Complaint was received in English only.
On June 12, 2020, Alibaba Cloud Computing (Beijing) Co., Ltd. confirmed by e-mail to the Forum that the <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com> domain names are registered with Alibaba Cloud Computing (Beijing) Co., Ltd. and that Respondent is the current registrant of the names. Alibaba Cloud Computing (Beijing) Co., Ltd. has verified that Respondent is bound by the Alibaba Cloud Computing (Beijing) Co., Ltd. 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 June 16, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 6, 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@chevrontaxacogiftcard.com, postmaster@chevrontexacoggiftcard.com, postmaster@chevrontexacogiftgard.com, postmaster@chevrontexacogoftcard.com. Also on June 16, 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 July 13, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com> domain names are confusingly similar to Complainant’s CHEVRON and TEXACO marks.
2. Respondent does not have any rights or legitimate interests in the <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com> domain names.
3. Respondent registered and uses the <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com> domain names in bad faith.
B. Respondent did not file a Response.
Complainant, Chevron Corporation, is an integrated energy company that holds registrations for the CHEVRON mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 396,698, registered on August 23, 1937) and for the TEXACO mark (Reg. No. 57,902, registered on December 4, 1906).
Respondent registered the disputed domain names on May 25, 2020, and uses them to promote third-party hyperlinks.
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”).
Preliminary Issue: Language of Proceeding
Pursuant to UDRP Rule 11(a), the Panel finds that there is persuasive evidence that Respondent is conversant in the English language, and thus this proceeding will be conducted in English.
The Panel finds that Complainant has rights in the CHEVRON and TEXACO marks through its registration of the marks with the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).
Respondent’s <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com> domain names incorporate both marks in their entirety, including common misspellings, the term “giftcard” and the “.com” gTLD. These changes are not sufficient to distinguish a disputed domain name from a mark under Policy ¶ 4(a)(i). See Staples, Inc. v. Whois Privacy Shield Services, FA 1617690 (Forum June 5, 2015) (holding that “Changing a single letter (especially when it is the final letter) is a minor enough change to support a finding of confusing similarity under Policy ¶ 4(a)(i).”); see also Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).). Therefore, the Panel finds that Respondent’s <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com> domain names are confusingly similar to Complainant’s CHEVRON and TEXACO marks.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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”).
Complainant argues that Respondent does not have rights or legitimate interests in the <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com> domain names, as Respondent is not commonly known by the domain names. Complainant has not authorized Respondent to use the CHEVRON or TEXACO marks. The WHOIS information for the disputed domain names shows that the registrant’s name is “Zhichao Yang.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names, and thus has no rights under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same); see also 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).
Complainant claims that Respondent fails to use the <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com> domain names for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent uses the domain names to pass off as Complainant and promote competing hyperlinks. Using a disputed domain name that features Complainant’s marks in an effort to promote hyperlinks is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Walgreen Co. v. Privacy protection service - whoisproxy.ru, FA 1785188 (Forum June 10, 2018) (“Respondent uses the <walgreensviagra.net> domain name to pass itself off as Complainant and display links to a website offering products similar to those offered by Complainant. Using the domain name in this manner is neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use under Policy ¶ 4(c)(iii).”). Complainant demonstrates that the disputed domain names’ websites contain unauthorized uses of Complainant’s marks and references to Complainant’s business, and links to credit card or gift card services. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered the <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com> domain names in bad faith, to pass off as Complainant and host competing hyperlinks. Using a domain name to pass off as the complainant and offer competitive services or goods evinces bad faith under Policy ¶ 4(b)(iv). See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding bad faith per Policy ¶¶ 4(b)(iii) and (iv) where the respondent used the disputed domain name to resolve to a website upon which the respondent passes off as the complainant and offers online cryptocurrency services in direct competition with the complainant’s business); see also Danbyg Ejendomme A/S v. lb Hansen / guerciotti, FA1504001613867 (Forum June 2, 2015) (finding that the respondent registered and used the domain name in bad faith under Policy ¶ 4(b)(iv) where the disputed domain name resolved to a website that offered both competing hyperlinks and hyperlinks unrelated to the complainant’s business). Accordingly, the Panel finds that Respondent’s use of the disputed domain names to promote third-party hyperlinks and to compete with Complainant constitutes bad faith under Policy ¶ 4(b)(iv).
Complainant argues that Respondent registered the <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com> domain names with knowledge of Complainant’s rights in the CHEVRON and TEXACO marks. Complainant further asserts that Respondent’s use of two of Complainant’s marks demonstrates actual knowledge. The Panel agrees and finds that Respondent had actual knowledge of Complainant’s rights in the marks and thus registered the disputed domain names in bad faith under Policy ¶ 4(a)(iii). See United States Postal Service v. Yongkun Wang, FA 1788170 (Forum July 11, 2018) (finding Respondent had actual knowledge of Complainant’s rights in the USPS mark “given the widespread use of Complainant’s mark and the fact that Respondent registered four separate domain names all of which include Complainant’s USPS mark in its entirety”).
The Panel finds that Complainant has satisfied 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 <chevrontaxacogiftcard.com>, <chevrontexacoggiftcard.com>, <chevrontexacogiftgard.com>, and <chevrontexacogoftcard.com> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 14, 2020
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