Sun Coast Resources, Inc. v. thck chk / chk llc
Claim Number: FA2203001989108
Complainant is Sun Coast Resources, Inc. (“Complainant”), represented by Jason R. Fulmer of Foley & Lardner LLP, Texas, USA. Respondent is thck chk / chk llc (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <suncoastresources.co>, registered with NameCheap, Inc..
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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 22, 2022; the Forum received payment on March 22, 2022.
On March 22, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <suncoastresources.co> 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 March 25, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 14, 2022 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@suncoastresources.co. Also on March 25, 2022, 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 April 19, 2022, 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 name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is one of the largest wholesale petroleum marketers in the United States and provides high-quality fuels, lubricants, chemicals and related programs and services to businesses and agencies throughout the nation. Headquartered in Houston, Texas, Complainant has been providing fuel-related products and services since at least as early as 1985, and today operates out of 18 offices and bulk plant facilities in Texas, Oklahoma and Louisiana. Complainant has rights in the SUN COAST RESOURCES and SUN COAST marks through their registration in the United States in, respectively, 2001 and 2018.
Complainant alleges that the disputed domain name is identical to its SUN COAST RESOURCES mark as it incorporates the mark in its entirety and merely adds the “.co” country-code top-level domain (“ccTLD”), further, it is confusingly similar to its SUN COAST mark as it incorporates the mark in its entirety and merely adds the generic term “resources” and the “.co” ccTLD.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name as Respondent is not commonly known by the disputed domain name nor did Complainant authorize Respondent to use the its mark in any way. Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead the disputed domain name resolves to a parked webpage that offers advertising links to competing businesses.
Further, says Complainant, Respondent registered and used the disputed domain name in bad faith as it resolves to a webpage that offers links to competing businesses. Respondent also uses email addresses associated with the disputed domain name in furtherance of a fraudulent phishing scheme: Respondent sent an email impersonating one of Complainant’s representatives to one of Complainant’s customer asking that payment for previous services be re-routed to a different (fraudulent) bank account because of a COVID protocol; the customer then paid such amount (in excess of $35,000) to Respondent’s account. Respondent had actual knowledge of Complainant’s rights in the SUN COAST RESOURCES mark due to the longstanding use of the mark in commerce.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the marks SUN COAST RESOURCES and SUN COAST and uses them in connection with its petroleum business.
Complainant’s registrations of its marks date back to, respectively, 2001 and 2018.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
The resolving website is a parked page that displays competing hyperlinks; Respondent is using the disputed domain name in furtherance of a fraudulent email phishing scheme.
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 name contains Complainant’s SUN COAST RESOURCES mark in its entirety, merely adding the “.co” ccTLD. Registration of a domain name that contains a mark in its entirety and adds a gTLD does not distinguish the domain name from the mark per Policy ¶ 4(a)(i). See loanDepot.com, LLC v. sm goo, FA 1786848 (Forum June 12, 2018) (“we conclude from a review of the record that Respondent’s <mellosolar.com> domain name is substantively identical and confusingly similar to Complainant’s MELLO SOLAR mark.”); see also KW KONA INVESTORS, LLC v. Privacy.co.com / Privacy.co.com, Inc Privacy ID# 923815, FA 1784456 (Forum June 11, 2018) (“[T]he omission of spacing and addition of a gTLD are irrelevant in determining whether the disputed domain name is confusingly similar.”); see also Rockwell Automation v. Zhao Ke, FA 1760051 (Forum Jan. 2, 2018) (“The disputed domain name <rockwellautomation.co> corresponds to Complainant's registered ROCKWELL AUTOMATION mark, with the space omitted and the ".co" top-level domain appended thereto. These alterations do not distinguish the domain name from Complainant's mark for purposes of the Policy.”). Further, the disputed domain name contains Complainant’s SUN COAST mark in its entirety, merely adding the generic term “resources” and the “.co” ccTLD. Such changes are not sufficient to distinguish the domain name from the mark. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) (“Where a relevant trademark is recognizable 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.”). Thus the Panel finds that the disputed domain name is identical or confusingly similar to Complainant’s marks per Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its marks. Respondent is not commonly known by the disputed domain name: where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). 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 “thck chk/chk llc”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
The disputed domain name resolves to a parked webpage that offers links to competing businesses. Use of a disputed domain name to resolve to a webpage that offers links to services that compete with a complainant’s business is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii). See Ashley Furniture Industries, Inc. v. domain admin / private registrations aktien gesellschaft, FA1506001626253 (Forum July 29, 2015) (“Respondent is using the disputed domain name to resolve to a web page containing advertising links to products that compete with those of Complainant. The Panel finds that this does not constitute a bona fide offering or a legitimate noncommercial or fair use.”). Therefore the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
Further, Respondent uses the disputed domain name to pass off as Complainant to conduct a phishing scheme. Specifically, Complainant provides evidence that Respondent used the disputed domain name in an email to obtain a fraudulent bank payment. Passing off as a complainant to conduct a phishing scheme is evidence that a respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) & (iii). See DaVita Inc. v. Cynthia Rochelo, FA 1738034 (Forum July 20, 2017) (”Passing off in furtherance of a phishing scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use.”). For this reason also, the Panel finds that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) & (iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s marks. 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 disputed domain name resolves to a parked webpage that offers links to competing businesses. Use of a disputed domain name to resolve to a webpage that offers links that compete with a complainant may be evidence of bad faith per Policy ¶ 4(b)(iii). See American Council on Education and GED Testing Service LLC v. Anthony Williams, FA1760954 (Forum Jan. 8, 2018) (“Respondent’s hosting of links to Complainant’s competitors demonstrates bad faith registration and use of the <geddiploma.org> domain name pursuant to Policy ¶ 4(b)(iii)”). Therefore the Panel finds that Respondent has registered and used the disputed domain name in bad faith per Policy ¶ 4(b)(iii).
Further, also as already noted, Respondent used email addresses associated with the domain name to impersonate one of Complainant’s representatives and obtain a fraudulent bank transfer. This behavior is evidence of bad faith registration and use under the Policy. See National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum Sept. 22, 2014) (finding bad faith where respondent fraudulently attempted to induce wire transfers by sending e-mails purporting to be from complainant’s President and CEO); see also Capital One Financial Corporation and Capital One Bank v. Austin Howel, FA 289304 (Forum Aug. 11, 2004) (finding bad faith where respondent used complainant’s mark to fraudulently induce transfer of credit and personal identification information). Consequently, the Panel finds, on this ground also, that Respondent registered and is using the disputed domain name in bad faith in the sense of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <suncoastresources.co> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: April 20, 2022
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