Chevron Intellectual Property LLC v. perdamaian hutabarat / personal
Claim Number: FA1606001681916
Complainant is Chevron Intellectual Property LLC (“Complainant”), represented by Jenny T. Slocum of Dickinson Wright PLLC, District of Columbia, United States. Respondent is perdamaian hutabarat / personal (“Respondent”), Indonesia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <karir-chevronindonesia.com>, registered with CV. Rumahweb Indonesia.
The undersigned certifies that he acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Ho Hyun Nahm, Esq. as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 29, 2016; the Forum received payment on June 29, 2016. The Complaint was submitted in both Indonesian and English.
On July 1, 2016, CV. Rumahweb Indonesia confirmed by e-mail to the Forum that the <karir-chevronindonesia.com> domain name is registered with CV. Rumahweb Indonesia and that Respondent is the current registrant of the name. CV. Rumahweb Indonesia has verified that Respondent is bound by the CV. Rumahweb Indonesia 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 12, 2016, the Forum served the Indonesian language Complaint and all Annexes, including an Indonesian language Written Notice of the Complaint, setting a deadline of August 1, 2016 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@karir-chevronindonesia.com. Also on July 12, 2016, the Indonesian 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.
On August 9, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Ho Hyun Nahm, Esq. 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
i) Complainant uses the CHEVRON mark in connection with its parent company, Chevron Corporation, as one of the world’s leading integrated energy companies. Complainant has registered the CHEVRON mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 364,683, registered Feb. 14, 1939), which establishes rights in the mark. Respondent’s <karir-chevronindonesia.com> domain name is confusingly similar to the CHEVRON mark as it incorporates the mark in its entirety, the word “karir”, which is the Indonesian translation of the word “career”, a hyphen, the country name “Indonesia” and the generic top-level domain (“gTLD”) “.com.”
ii) Respondent has no rights or legitimate interests in the <karir-chevronindonesia.com> domain name. Respondent is not commonly known by the disputed domain name nor has Complainant given Respondent authorization, consent or approval to use the CHEVRON mark. Further, Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use through the <karir-chevronindonesia.com> domain name. Rather, the domain resolves to a webpage that mimics Complainant’s <chevronindonesia.com> website and solicits potential job applicants to register for an account.
iii) Respondent is using the <karir-chevronindonesia.com> domain name in bad faith. Respondent’s use of the website serves as a disruption of Complainant’s legitimate business purposes. Respondent has also attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website. Further, Respondent had actual notice of the CHEVRON mark and Complainant’s rights therein because the disputed domain name includes Complainant’s mark, and the website that was created copies Complainant’s website and implies a business connection.
B. Respondent
Respondent did not submit a response in this proceeding. The Panel notes that the <karir-chevronindonesia.com> domain name was registered on April 20, 2016.
Complainant established that it had rights in the mark contained in the disputed domain name. The disputed domain name is confusingly similar to Complainant’s protected mark.
Respondent has no rights to or legitimate interests in the disputed domain name.
Respondent registered and used the disputed domain name in bad faith.
Preliminary Issue: Language of the Proceedings
The Panel notes that the Registration Agreement is written in Indonesian, thereby making the language of the proceedings in Indonesian. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Indonesian language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
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 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 (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 uses the CHEVRON mark in connection with its parent company, Chevron Corporation, as one of the world’s leading integrated energy companies. Complainant purports it has registered the CHEVRON mark with the USPTO (e.g., Reg. No. 364,683, registered Feb. 14, 1939), and argues that its demonstration of trademark registrations is sufficient in establishing Policy ¶ 4(a)(i) rights in the CHEVRON mark. Panels have found that a complainant’s valid USPTO registration is sufficient in establishing rights in a mark per Policy ¶ 4(a)(i) irrespective of a respondent’s country of origin. See Homer TLC, Inc. v. Artem Ponomarev, FA 1623825 (Forum July 20, 2015) (finding Policy ¶ 4(a)(i) rights “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 operates (here Russia).”). Therefore, this Panel finds that Complainant has established Policy ¶ 4(a)(i) rights in the CHEVRON mark.
Next, Complainant argues that Respondent’s <karir-chevronindonesia.com> domain name is confusingly similar to the CHEVRON mark as it incorporates the mark in its entirety, the word “karir”, which is the Indonesian translation of the word “career”, a hyphen, the country name “Indonesia” and the gTLD “.com.” Panels have found such alterations to a mark are insufficient in overcoming a finding of confusing similarity under Policy ¶ 4(a)(i). See Avaya Inc. v. Evelyn Dayda / Avaya Unlimited Sources LLC, FA 1611255 (Forum May 4, 2015) (finding that as “the ‘usa’ portion of the disputed domain name is a generic geographic term, the internet user will assume that the domain name deals with the activities of Complainant in the USA and that it will lead to a website dealing with that subject. The domain name is therefore confusingly similar to the AVAYA mark and the Panel so finds.”); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy); see also Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exist where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy.). Therefore, the Panel agrees that Respondent’s <karir-chevronindonesia.com> domain name is confusingly similar to the CHEVRON mark under Policy ¶ 4(a)(i).
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 (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); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first 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, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in the <karir-chevronindonesia.com> domain name. To begin, Complainant asserts that Respondent is not commonly known by the disputed domain name, nor did Complainant authorize, consent or approve Respondent’s use of the CHEVRON mark. The Panel notes Complainant's Exhibit, the WHOIS information regarding the disputed domain name listing “perdamaian hutabarat / personal” as registrant of record. The Panel also notes that Respondent has failed to submit a response in this proceeding. Therefore, in light of the available evidence, this Panel agrees that there is no basis to find Respondent commonly known by the disputed domain name per Policy ¶ 4(c)(ii). See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Further, Complainant argues that Respondent is making neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use through the <karir-chevronindonesia.com> domain name. Rather, Complainant contends that the domain name resolves to an active website that mimics Complainant’s <chevronindonesia.com> website and further, solicits potential job applicants to register for an account. Panels have found such use by a respondent consists of neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum Apr. 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website); see also General Motors LLC v. MIKE LEE, FA 1659965 (Forum Mar. 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore, this Panel agrees that Respondent’s <karir-chevronindonesia.com> domain name constitutes neither a bona fide offering of goods or services, nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Complainant argues that Respondent’s use of the <karir-chevronindonesia.com> domain name serves as a disruption of Complainant’s legitimate business purposes pursuant to Policy ¶ 4(b)(iii) because it causes Internet users to believe they are accessing a website sponsored by Complainant and allows them to register for an account. Panels have agreed where a respondent has attempted to divert Internet users to a competing website, such use constitutes bad faith disruption under Policy ¶ 4(b)(iii). See Artistic Pursuit LLC v. calcuttawebdevelopers.com, FA 894477 (Forum Mar. 8, 2007) (finding that the respondent’s registration and use of the disputed domain name, which displayed a website virtually identical to the complainant’s website, constituted bad faith pursuant to Policy ¶ 4(b)(iii)); see also Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iii).”). Therefore, this Panel agrees that Respondent’s <karir-chevronindonesia.com> domain name falls within the purview of Policy ¶ 4(b)(iii).
Further, Complainant contends that Respondent has also attempted to attract Internet users to its site for commercial gain by creating confusion as to the source, sponsorship, affiliation, or endorsement of the website. The Panel agrees with Complainant and holds that Internet user confusion which subsequently results in the creation of a web account that competes with Complainant, constituting bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”); see also Metro. Life Ins. Co. v. Bonds, FA 873143 (Forum Feb. 16, 2007) (“The Panel finds such use to constitute bad faith registration and use pursuant to Policy ¶ 4(b)(iv), because [r]espondent is taking advantage of the confusing similarity between the <metropolitanlife.us> domain name and Complainant’s METLIFE mark in order to profit from the goodwill associated with the mark.”).
Complainant also contends that in light of the fame and notoriety of Complainant's CHEVRON mark, it is inconceivable that Respondent could have registered the <karir-chevronindonesia.com> domain name without actual knowledge of Complainant's rights in the mark. The Panel agrees with Complainant that Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name and finds that actual knowledge is adequate evidence of bad faith under Policy ¶ 4(a)(iii). See 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).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <karir-chevronindonesia.com> domain name be TRANSFERRED from Respondent to Complainant.
Ho Hyun Nahm, Esq., Panelist
Dated: August 15, 2016
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