Hess Corporation v. Sister Carmen
Claim Number: FA1507001629045
Complainant is Hess Corporation (“Complainant”), represented by Paul J. Reilly of Baker Botts L.L.P., New York, USA. Respondent is Sister Carmen (“Respondent”), Georgia, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hess-careers.com>, registered with GoDaddy.com, LLC.
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 July 15, 2015; the Forum received payment on July 15, 2015.
On July 15, 2015, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <hess-careers.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 July 16, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 5, 2015 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@hess-careers.com. Also on July 16, 2015, 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 August 7, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration 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
1. Complainant owns the HESS mark in numerous versions through the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 832,393, registered July 25, 1967). Complainant is an integrated oil and gas company, and uses the HESS mark in connection with its business of exploration and production of crude oil and natural gas around the world. The <hess-careers.com> domain name is confusingly similar to the HESS mark. The domain name contains Complainant’s mark, adds the generic term “careers,” inserts a hyphen, and attaches the generic top-level domain (“gTLD”) “.com” to the domain name.
2. Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not been commonly known by the disputed domain name, as evidenced by the WHOIS record for the <hess-careers.com> domain name. Further, Complainant has never authorized Respondent to register the disputed domain name, nor send emails from a confusingly similar domain name. Respondent’s lack of rights or legitimate interests in the disputed domain name is made further evident by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent’s disputed domain name resolves to a website with no content. Respondent uses an e-mail address attached to the disputed domain name to masquerade as Complainant in order to obtain personal and financial information from potential applicants.
3. Respondent has engaged in bad faith registration and use of the <hess-careers.com> domain name. Respondent uses the disputed domain to perpetrate an Internet fraud scheme. Further, Respondent was aware or should have been aware of the HESS mark when it registered the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is Hess Corporation of New York, NY, USA. Complaint is the owner of domestic and international registrations for HESS and the Hess family of marks. Complainant has continuously used the HESS mark since at least as early as 1933 in connection with its provision of goods and services in the petroleum industry.
Respondent is Sister Carmen of Rome, GA, USA. Respondent’s registrar’s address is listed as Scottsdale, AZ, USA. The Panel notes that the <hess-careers.com> domain name was registered on or about June 11, 2015.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant contends that it owns the HESS mark in numerous versions through the USPTO (e.g., Reg. No. 832,393, registered July 25, 1967). Complainant states that it is an integrated oil and gas company, and uses the HESS mark in connection with its business of exploration and production of crude oil and natural gas around the world. Prior panels have found that trademark registrations are sufficient to demonstrate that a complainant has rights in the mark under Policy ¶ 4(a)(i). See Expedia, Inc. v. Tan, FA 991075 (Nat. Arb. Forum June 29, 2007) (“As the [Complainant’s] mark is registered with the USPTO, Complainant has met the requirements of Policy ¶ 4(a)(i).”). The Panel here finds that Complainant’s USPTO registration satisfies Policy ¶4(a)(i).
Complainant argues that the <hess-careers.com> domain name is confusingly similar to the HESS mark. To alter Complainant’s mark, Respondent merely adds the generic term “careers,” inserts a hyphen, and attaches the gTLD “.com” to create the <hess-careers.com> domain name. Past panels have found that the addition of generic terms and a gTLD do not change the overall impression of the domain name. See Warner Bros. Entm’t Inc. v. Rana, FA 304696 (Nat. Arb. Forum Sept. 21, 2004) (finding that the addition of the generic term “collection” to Complainant’s HARRY POTTER mark failed to distinguish the domain name from the mark); see also Jerry Damson, Inc. v. Tex. Int’l Prop. Assocs., FA 916991 (Nat. Arb. Forum Apr. 10, 2007) (“The mere addition of a generic top-level domain (“gTLD”) “.com” does not serve to adequately distinguish the Domain Name from the mark.”). The Panel here finds that the disputed domain name is confusingly similar to Complainant’s HESS mark under Policy ¶ 4(a)(i).
Respondent makes no contentions with regards to Policy ¶ 4(a)(i).
The Complainant has proven this element.
The Panel recognizes 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), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Complainant has met this burden.
Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain name. In so arguing, Complainant alleges that Respondent has not been commonly known by the disputed domain name, as evidenced by the WHOIS record for the <hess-careers.com> domain name. The Panel notes that the WHOIS information for the disputed domain name lists “Sister Carmen” as the registrant of record. Further, Complainant states it has never authorized Respondent to register the disputed domain name, nor send emails from a confusingly similar domain name. As the Respondent has failed to provide a response including any evidence that might refute these allegations, the Panel finds that Complainant’s contentions sufficiently establish Respondent’s lack of rights to the disputed domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Nat. Arb. Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Complainant asserts that Respondent’s lack of rights or legitimate interests in the disputed domain name is made clear by Respondent’s failure to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. According to Complainant, Respondent’s disputed domain name resolves to a website with no content. Additionally, Complainant alleges that Respondent uses an e-mail address attached to the disputed domain name to masquerade as Complainant in order to obtain personal and financial information from potential applicants. Respondent uses <hess-careers.com> as part of a scam, whereby Respondent sends e-mails offering recipients a career opportunity with Complainant, specifically the non-existent position of “Procurement and Store Manager,” and requires recipients to execute and return a “Contract Agreement Letter,” along with certificates of proof of educational qualification. Previous panels have found that fraudulent e-mail phishing schemes do not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Tyco Int’l Services GmbH v. TYCOINT SCOT, FA 1590501 (Nat. Arb. Forum Dec. 22, 2014) (finding no rights or legitimate interests where the disputed domain name was used to impersonate the complainant in e-mail messages in connection with a fraudulent scheme aimed at the complainant’s customers). The Panel here finds that Respondent’s use of the disputed domain name to perpetrate a phishing scheme through e-mail does not convey rights or legitimate interests in a domain name under Policy ¶ ¶ 4(c)(i) or 4(c)(iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(ii).
As the Respondent has not provided a response to this action, the Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.
The Complainant has proven this element.
While Complainant does not make any contentions that fall within the articulated provisions of Policy ¶ 4(b), the Panel may note that these provisions are meant to be merely illustrative of bad faith, and that Respondent’s bad faith may be demonstrated by ancillary allegations considered under the totality of the circumstances. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith).
Complainant claims that Respondent uses the disputed domain to perpetrate an Internet fraud scheme. According to Complainant, Respondent uses the <mykel.ziolo@hess-careers.com> email address attached to the disputed domain name to masquerade as Complainant in order to obtain personal and financial information from potential applicants. Respondent uses <hess-careers.com> as part of a scam, whereby Respondent sends emails offering recipients a career opportunity with Complainant, specifically the non-existent position of “Procurement and Store Manager,” and requires recipients to execute and return a “Contract Agreement Letter”, along with certificates of proof of educational qualification. Past panels have found that disputed domain names that are used for the purpose of perpetration e-mail based phishing schemes are evidence of bad faith. See SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA 1581255 (Nat. Arb. Forum Oct. 29, 2014) (“Respondent’s use of the domain name’s e-mail suffix for fraudulent purposes illustrates Policy ¶ 4(a)(iii) bad faith.”); see also HOPE worldwide, Ltd. v. Jin, FA 320379 (Nat. Arb. Forum Nov. 11, 2004) (holding that the respondent registered and used the domain name in bad faith because it redirected Internet users to a website that imitated the complainant’s website and was used to fraudulently acquire personal information from the complainant’s potential associates). The Panel here finds that Respondent’s actions illustrate bad faith use and registration under Policy ¶ 4(a)(iii).
Respondent makes no contentions with regards to Policy ¶ 4(a)(iii).
The Complainant has proven this element.
Because 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 <hess-careers.com> domain name be TRANSFERRED from Respondent to Complainant.
Darryl C. Wilson, Panelist
Dated: August 21, 2015
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