Chevron Intellectual Property LLC v. Better Better / Better Life
Claim Number: FA1708001746277
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Jenny T. Slocum of Dickinson Wright PLLC, District of Columbia, USA. Respondent is Better Better / Better Life (“Respondent”), United Kingdom.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <chevcorpoil.com>, registered with Web4Africa Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 25, 2017; the Forum received payment on August 25, 2017.
On August 31, 2017, Web4Africa Inc. confirmed by e-mail to the Forum that the <chevcorpoil.com> domain name is registered with Web4Africa Inc. and that Respondent is the current registrant of the name. Web4Africa Inc. has verified that Respondent is bound by the Web4Africa 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 August 31, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 20, 2017 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@chevcorpoil.com. Also on August 31, 2017, 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 September 22, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is a global integrated energy company, doing business under the CHEVRON mark.
Complainant holds a registration for the CHEVRON service mark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,719,489, registered May 27, 2003.
Respondent registered the domain name <chevcorpoil.com> on May 1, 2017.
The domain name is confusingly similar to Complainant’s CHEVRON mark.
Complainant has not licensed or otherwise authorized Respondent to use its CHEVRON mark in any fashion.
Respondent has not been commonly known by the domain name.
Respondent is not using the domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Instead, the domain name for a time resolved to a website containing a replica of Complainant’s own website, which is found at <www.chevron.com>, and incorporated Complainant’s CHEVRON marks, plus information about Complainant’s business.
Currently, the domain name resolves to an inactive website.
Respondent has used the domain name in connection with a fraudulent email scheme designed to mislead Internet users that issues a fake job posting and misleading information that could lure the recipient into sending personal documents to Respondent.
Respondent does not have rights to or legitimate interests in the domain name.
Respondent’s use of the domain name has disrupted Complainant’s business.
This use of the domain name was intended to benefit Respondent commercially by creating confusion among Internet users as to the possibility of Complainant’s sponsorship of, or affiliation with, the domain name.
Respondent knew of Complainant’s rights in the CHEVRON mark at the time of its registration of the domain name.
Respondent registered and is using the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a service mark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent in bad faith.
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept all reasonable allegations and inferences set out in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant has rights in the CHEVRON service mark for purposes of Policy ¶ 4(a)(i) by virtue of its registration of the mark with a national trademark authority, the USPTO. See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration of a mark with the USPTO is sufficient to establish a UDRP complainant’s rights in that mark).
This is so without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here the United Kingdom). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <chevcorpoil.com> domain name is confusingly similar to Complainant’s CHEVRON service mark. The domain name contains a recognizable abbreviation of the mark and merely appends two generic terms, “corp” and “oil,” which together describe Complainant and its business, plus the generic Top Level Domain (“gTLD”) “.com”. These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See YETI Coolers, LLC v. Randall Bearden, FA 16060016880755 (Forum August 10, 2016) (finding that the words “powder coating” in the <yetipowdercoating.com> domain name are “merely explicative and directly refer to some of the services rendered by the Complainant” and, therefore, create an “irrefutable confusing similarity” to complainant’s YETI mark).
See also Universal Protein Supplements Corporation d/b/a Universal Nutrition v. Universal Nutrition, FA 1510186 (Forum August 28, 2013) (finding confusing similarity between a challenged domain name and the mark from which it was derived, because the “<uniprotein.com> domain name is, as alleged in the Complaint, an amalgamation of a common abbreviation of Complainant’s UNIVERSAL trademark and the term ‘protein,’ which describes an aspect of Complainant’s business, plus the generic Top Level Domain (‘gTLD’) ‘.com.’”).
Under Policy ¶ 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the disputed domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the <chevcorpoil.com> domain name, and that Complainant has not licensed or otherwise authorized Respondent to use its CHEVRON mark in any way. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Better Better,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the contested domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name registration). See also Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that a respondent was not commonly known by the <chevron-europe.com> domain name as provided in Policy ¶ 4(c)(ii), where the relevant WHOIS information named “Fred Wallace” as registrant of that domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent previously used the <chevcorpoil.com> domain name to resolve to a website displaying a replica of Complainant’s own website, which is found at <www.chevron.com>, and that the resolving website incorporated Complainant’s CHEVRON marks as well as information about Complainant’s business. This use of the domain name is neither a bona fide offering of goods or services by means of the domain name nor a legitimate noncommercial or fair use of it such as would confirm in Respondent rights to or legitimate interests in it within the terms of Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum April 25, 2006) (The panel there finding that a respondent’s attempt to pass itself of as a UDRP complainant, by means of a domain name that was confusingly similar to the mark of that complainant, was not 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) where that respondent used the domain name to present Internet users with a website that was nearly identical to that complainant’s website).
We also take note of Complainant’s allegation, again not denied by Respondent,
that, Respondent currently uses the <chevcorpoil.com> domain name
as an email address suffix for the purpose of misleading and defrauding
Internet users. Such use of the domain name is likewise neither a bona fide offering
of goods or services nor a legitimate noncommercial or fair use. See Emerson
Electric Co. v. Adilcon Rocha, FA 1735949 (Forum
July 11, 2017) (finding that a respondent’s attempt to pass itself off as a
UDRP complainant through fraudulent emails generated under cover of a domain
name that was confusingly similar to that complainant’s mark, did not
constitute a bona fide offering of goods or services and, as such,
respondent lacked rights to or legitimate interests in the disputed domain name
as provided in Policy ¶¶ 4(c)(i)-(iii)). See
also Chevron Intellectual Property LLC v. Thomas Webber, FA 1661076
(Forum March 15, 2016) (finding
that a respondent failed to make a bona fide offering of goods or
services or a legitimate noncommercial or fair use of a contested domain name, where:
Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.
Finally, under this head of the Policy, Complainant charges that Respondent’s <chevcorpoil.com> domain name does not presently resolve to an active website. Use of the domain name to resolve to an inactive website is, in the circumstances described in the Complaint, neither a bona fide offering of goods or services by means of it nor a legitimate noncommercial or fair use of it under the Policy. See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that a respondent’s non-use of disputed domain names demonstrated that that respondent was not using them for 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)).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the challenged <chevcorpoil.com> domain name as alleged in the Complaint was disruptive of Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in registering and using the domain name. See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Decembeer 28, 2005):
Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).
See also Wells Fargo & Co. v. Mihael, FA 605221 (Forum January 16, 2006):
Complainant asserts,… that soon after the disputed domain name was registered, Respondent arranged for it to resolve to a web site closely resembling a legitimate site of Complainant, called a ‘doppelganger’ (for double or duplicate) page, the purpose of which is to deceive Complainant’s customers into providing to Respondent their login identification, social security numbers, and/or account information and Personal Identification Numbers…. The Panel finds that Respondent’s behavior, as alleged, constitutes bad faith registration and use of the subject domain name pursuant to Policy ¶ 4(a)(iii).
We are also convinced by the evidence that Respondent has registered and used the <chevcorpoil.com> domain name, which we have found to be confusingly similar to Complainant’s CHEVRON service mark, to attempt to profit illicitly from the confusion thus caused among Internet users as to the possibility of Complainant’s affiliation with the domain name. Under Policy ¶ 4(b)(iv), this too demonstrates Respondent’s bad faith in registering and using the domain name. See Am. Online, Inc. v. Miles, FA 105890 (Forum May 31, 2002):
Respondent is using the domain name at issue to resolve to a website at which Complainant’s trademarks and logos are prominently displayed. Respondent has done this with full knowledge of Complainant’s business and trademarks. The Panel finds that this conduct is that which is prohibited by Paragraph 4(b)(iv) of the Policy.
In addition, it is plain from the record that Respondent knew of Complainant and its rights in the CHEVRON mark when it registered the <chevcorpoil.com> domain name. This further shows Respondent’s bad faith in registering the domain name. See Norgren GmbH v. Domain Admin / Private Registrations Aktien Gesellschaft, FA1501001599884 (Forum February 25, 2014) (finding that a respondent knew of a UDRP complainant and its rights in a mark, thus demonstrating bad faith registration under Policy ¶ 4(a)(iii), where that respondent used the domain name to host links related to that complainant’s line of business). See also Radio & Records, Inc. v. Nat’l Voiceover, FA 665235 (Forum May 9, 2006):
Respondent’s registration of the disputed domain name with knowledge of Complainant’s rights is further evidence of bad faith registration and use under Policy ¶ 4(a)(iii).
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <chevcorpoil.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 4, 2017
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