EOG Resources, Inc. v. Angela Enyia / Plot 110, Zone D2, Block 249, Flat 1, Iba Housing Estate Iyana Iba Lagos State.
Complainant is EOG Resources, Inc. (“Complainant”), represented by Thomas L. Warden of Conley Rose, P.C., Texas, USA. Respondent is Angela Enyia / Plot 110, Zone D2, Block 249, Flat 1, Iba Housing Estate Iyana Iba Lagos State. (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eogresrources.com>, registered with OwnRegistrar, 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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 16, 2022; the Forum received payment on May 16, 2022.
On May 17, 2022, OwnRegistrar, Inc. confirmed by e-mail to the Forum that the <eogresrources.com> domain name is registered with OwnRegistrar, Inc. and that Respondent is the current registrant of the name. OwnRegistrar, Inc. has verified that Respondent is bound by the OwnRegistrar, 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 May 18, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 7, 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@eogresrources.com. Also on May 18, 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 June 13, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 asserts trademark rights in EOG RESOURCES. Complainant holds a national registration for that trademark. Complainant submits that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant is a crude oil and natural gas exploration and production company and the owner of United States Patent & Trademark Office (“USPTO”) Reg. No. 2,635,944, registered October 15, 2002, for EOG RESOURCES;
2. the disputed domain name was registered on December 17, 2021 and used to redirect Internet users to Complainant’s own webpage and has been associated with emails posing as having originated from Complainant’s personnel department; and
3. there is no relationship between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating the trademark.
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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). Complainant provides proof of its registration of the trademark with the USPTO, a national trademark authority and so the Panel finds that it has established rights in EOG RESOURCES.
Countless UDRP decision have held that in most cases the gTLD can be ignored for the purposes of comparison of a domain name with a trademark. Once the gTLD in this case, “.com”, is subtracted from the domain, what remains includes a misspelling of the word “resources”. However, as was recently underscored, a misspelt, even typosquatted, iteration of a trademark does not, ipso facto, result in a term which is confusing similar to that trademark (see MedImpact Healthcare Systems, Inc. v. Quan Zhongjun / Juanita Co., FA2204001992813 (Forum May 30, 2022) where the Panel held that:
“If an assertion of typosquatting is accepted, all that can be said is that a respondent set out to create a risk of confusion. No hard conclusions can be drawn about similarity which would apply to every case. All that may be inferred is that the respondent hopes that the malformed iteration of the intended word or mark will go unnoticed by the internet user.”
Sensibly, in the case at hand now, Complainant’s submission is that “[a]ny distinction between the domain and the mark is not likely to gain attention or otherwise distinguish the EOGRESROURCES.COM domain name from Complainant’s mark EOG RESOURCES.”
The Panel finds that the domain name is confusingly similar to the trademark (see, too, Acme Lift Company, L.L.C. v. VistaPrint Technologies Ltd, FA 1607039 (Forum Apr. 11, 2015), stating that “[w]here a respondent has created a domain name in an effort to visually deceive Internet users via a simple misspelling (and when such misspellings are visually similar to the mark), a finding of confusing similarity under Policy ¶ 4(a)(i) is appropriate.”
It follows that Complainant has satisfied the first element of the Policy.
Rights or Legitimate Interests
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000‑0624).
In consequence of these proceedings the Registrar disclosed the name of the underlying domain name registrant as “Angela Enyia”. There is no suggestion that Respondent might be commonly known by the disputed domain name, or that Respondent has any trademark rights.
The evidence in support of the Complaint shows that the domain name redirects Internet users to Complainant’s own website log-in page. Further, that the domain name has been used by Respondent to pass itself off as Complainant. In particular, Complainant states that from May 2022 Respondent began impersonating it in email communications with foreign job seekers. Those emails used the domain name and posed as having come from a human resources officer of Complainant. The emails sought detailed and sensitive personal information from the prospective job applicants, including date of birth, passport information, addresses and education.
The use of the disputed domain name clearly does not constitute a bona fide offering of goods or services, or a legitimate non-commercial or fair use. The Panel finds that Complainant has made a prima facie case that Respondent lacks a right or interest in the disputed domain name (see, for example, Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”); 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.”).
The onus shifts to Respondent. Absent a Response that onus is not met and so the Panel finds that Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.’
The Panel finds that Respondent’s conduct falls under paragraph 4(b)(iv) above. The Panel has already found the domain name to be confusingly similar to the trademark. The use of the domain name is most likely for commercial gain in one form or another, the exact manner being irrelevant. In terms of the Policy, the Panel finds that Respondent’s use of the domain name was intended to attract, for commercial gain, internet users to an online location by creating a likelihood of confusion with Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of that online location (see, for example, Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”)
The Panel finds that the third and final element of the Policy is satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <eogresrources.com> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: June 20, 2022
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