Chevron Intellectual Property LLC v. Vyacheslav Monogarov
Claim Number: FA2110001968964
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Fred W. Hathaway of DICKINSON WRIGHT PLLC, District of Columbia, USA. Respondent is Vyacheslav Monogarov (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <chevronbunge.com>, <chevron-bunge.com>, <bunge-chevron.com> and <bungechevron.com>, registered with Registrar of Domain Names REG.RU LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 14, 2021; the Forum received payment on October 14, 2021.
On October 15, 2021, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <chevronbunge.com>, <chevron-bunge.com>, <bunge-chevron.com> and <bungechevron.com> domain names are registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the names. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU 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 October 20, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint in both Russian and English, setting a deadline of November 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@chevronbunge.com, postmaster@chevron-bunge.com, postmaster@bunge-chevron.com, postmaster@bungechevron.com. Also on October 20, 2021, the English and Russian language 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, in both English and Russian.
On November 15, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Prior to discussing the three elements of the Policy, the Panel must decide on the language of the proceedings. The Registration Agreement is written in Russian, thereby making the language of the proceedings Russian.
Pursuant to UDRP Rule 11(a), the Panel has the authority to determine a different language for the proceedings, having regard to the circumstances of the case. It is established practice to take UDRP Rules 10(b) and (c) into consideration for the purpose of determining the language of the proceeding to ensure fairness and justice to both parties. Pursuant to Rule 10(b), Respondent must be given a fair opportunity to present its case. Pursuant to Rule 10(c), the Panel may weigh the relative time and expense in enforcing the Chinese language agreement, which would result in prejudice toward either party. See Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
In the present case, Respondent has received the Notification of Complaint and the Commencement Notification in Russian and has chosen not to respond to the Complaint; the resolving websites are in the English language. Pursuant to Rule 11(a), having regard to the circumstances of the case, the Panel determines that fairness and justice to both parties, and due expedition, are best satisfied by conducting the remainder of the proceedings in English. See H-D U.S.A., LLC v. Yoshihiro Nakazawa, FA 1736477 (Forum July 21, 2017); see also UBS AG v. ratzel laura, FA 1735687 (Forum July 14, 2017).
A. Complainant
Complainant states that it is one of the world's leading integrated energy companies with a global workforce of over 50,000 company employees and 3,500 service station employees. Complainant maintains a significant presence in North America, with its world headquarters in California. It also has major corporate offices in Texas, Pennsylvania, and Louisiana; and it operates refineries in California, Utah and Mississippi. Complainant’s exploration and production facilities are in several more U.S. states. Complainant’s parent business activities are carried out under the name “Chevron Corporation” and Complainant’s parent is well known by that name. Complainant is active in all facets of the global energy industry, including research, exploration, production and transportation of crude oil and natural gas; refining, marketing and distribution of transportation fuels (gasoline and diesel) and lubricants; manufacturing and sale of petrochemical products; generation of power and production of geothermal energy; providing energy efficient solutions; and development of future energy resources, including research for advanced biofuels. On or about September 2, 2021 (the same day as the date of registration of the disputed domain name), Complainant announced a memorandum of understanding with Bunge North America, Inc. (“Bunge”) of a proposed 50/50 joint venture to help meet the demand for renewable fuels and to develop lower carbon intensity feedstocks. The memorandum was announced via press releases by both Complainant and Bunge and received widespread press coverage by major news outlets. Bunge is a subsidiary of Bunge Limited (founded in 1818) and is an agribusiness and food ingredient company dedicated to improving the global food supply chain that operates in more than 40 countries, including but not limited to the United States, Russia, Europe, South America, etc. Complainant has rights in the CHEVRON mark through its registration in the United States in 1945.
Complainant alleges that the disputed domain names are identical or confusingly similar to its mark as they incorporate it in its entirety and merely add the term “bunge” (a reference to Complainant’s joint venture with Bunge), sometimes together with a hyphen, as well as the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use its CHEVRON mark in the disputed domain names. Respondent does not use the disputed domain names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead offers them for sale and inactively holds their resolving websites.
Further, says Complainant, Respondent registered and uses the disputed domain names in bad faith. The disputed domain names resolve to web sites where they are offered for sale, with no other content. Respondent registered the disputed domain names with opportunistic bad faith. Respondent registered the disputed domain names with actual knowledge of Complainant’s rights in the CHEVRON mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark CHEVRON and uses it to provide energy-related products and services. The mark is famous.
Complainant’s rights in its marks date back to 1945.
On or about September 2, 2021, Complainant announced a memorandum of understanding with Bunge North America, Inc. (“Bunge”) of a proposed joint venture.
The disputed domain names were registered on September 2, 2021.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The disputed domain names resolve to web sites where they are offered for sale, with no other content.
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 disputed domain names incorporate Complainant’s mark in its entirety and merely add the term “bunge” (a reference to Complainant’s joint venture with Bunge), sometimes together with a hyphen, as well as the “.com” generic top-level domain (“gTLD”). Under Policy ¶ 4(a)(i), adding a descriptive word related to a Complainant’s business, or incorporating multiple marks, along with a hyphen and the “.com” gTLD is generally insufficient in differentiating a disputed domain name from the mark it incorporates under Policy ¶ 4(a)(i). See G.D. Searle & Co. v. Paramount Mktg., FA 118307 (Forum Sept. 27, 2002) (holding that the addition of other well-known pharmaceutical drug brand names to the <viagra-xenical-propecia-meridia-bontril-phentermine-celebrex.com> domain name does not diminish the capacity of the disputed domain name to confuse Internet users, but actually “adds to the potential to confuse”); 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.”). Therefore, the Panel finds that the disputed domain names are confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain names: under Policy ¶ 4(c)(ii), where a response is lacking, relevant WHOIS information may PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”). Here, the WHOIS of record identifies the registrant of the disputed domain name as “Vyacheslav Monogarov”. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).
The disputed domain names resolve to web sites where they are offered for sale, with no other content. Under Policy ¶¶ 4(c)(i) and (iii), offering a disputed domain name for sale while inactively holding the disputed domain name’s resolving website is generally not considered a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Enterprise Holdings, Inc. v. Huang Jia Lin, FA1504001614086 (Forum May 25, 2015) (“Accordingly, the Panel finds that Respondent’s general attempt to sell the disputed domain name is further evidence of Respondent’s lack of rights and legitimate interests under Policy ¶ 4(a)(ii).”); see also Mothers Against Drunk Driving v. Shin, FA0154098 (Forum May 27, 2003) (holding that under the circumstances, the respondent’s apparent willingness to dispose of its rights in the disputed domain name suggested that it lacked rights or legitimate interests in the domain name); see also CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) (“Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).”). Therefore, the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods or services, or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). And the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Indeed, Respondent registered the disputed domain names on the same date as Complainant’s announcement of its joint venture with Bunge. Under Policy ¶ 4(a)(iii), registering a disputed domain name around an event that creates significant value in the name may evidence opportunistic bad faith. See 3M Co. v. Jeong, FA 505494 (Forum Aug. 11, 2005) (“Respondent’s registration of the disputed domain name the same day that Complainant issued the press release regarding the acquisition constitutes opportunistic bad faith.”). Thus the Panel finds that Respondent registered the disputed domain names with opportunistic bad faith under Policy ¶ 4(a)(iii).
Further, Respondent registered the disputed domain names with actual knowledge of Complainant’s mark: as noted above, the domain names were registered opportunistically to exploit Complainant’s announcement of its joint venture with Bunge. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also 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.”); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain names and that this constitutes 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 <chevronbunge.com>, <chevron-bunge.com>, <bunge-chevron.com>, and <bungechevron.com> domain names be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 15, 2021
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