Oracle International Corporation v. Linda Brooks
Claim Number: FA1607001686338
Complainant is Oracle International Corporation (“Complainant”), represented by Steven M. Levy, Pennsylvania, USA. Respondent is Linda Brooks (“Respondent”), Indiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oraclecorporate.com>, registered with GoDaddy.com, LLC.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her 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 July 29, 2016; the Forum received payment on August 4, 2016.
On August 1, 2016, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <oraclecorporate.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 August 4, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 24, 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@oraclecorporate.com. Also on August 4, 2016, 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 1, 2016, 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 world’s largest developers and marketers of computer hardware systems and enterprise software products—particularly its own brands of database management systems. As of 2011, it is the second-largest software maker by revenue, after Microsoft, and it has more than 420,000 customers (including 100 of the Fortune 100 corporations). Complainant registered its ORACLE mark in the United States in 1982 and uses it to market its computer hardware and software products and services. As a result of the long usage and promotion of the ORACLE mark, it has become overwhelmingly famous and widely recognized around the world by both computing industry professionals and members of the general public.
According to Complainant, the disputed domain name is confusingly similar to its mark because it merely adds the term “corporate,” a generic term or one that describes Complainant’s business, and the generic top-level domain (“gTLD”) identifer “.com” to the ORACLE mark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain. Complainant has not licensed or given Respondent any authorization to use the ORACLE mark, and Respondent is not commonly known by the disputed domain name. The disputed domain name does not resolve to an active website, but Respondent uses the domain name to perpetuate an e-mail based fraud scheme to obtain the personal information of unsuspecting job seekers.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Respondent presumably is commercially gaining by gathering personal information from Internet users that are confused as to the source, sponsorship, affilliation, or endorsement of Respondent’s website. Additionally, because of the fame of Complainant’s mark, it is clear that Respondent had actual knowledge of Complainant’s rights in the ORACLE mark at the time Respondent registered the domain. Finally, Respondent used a privacy service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark ORACLE dating back to 1982. The mark is famous.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain name to send e-mails to obtain personal information from unsuspecting users, that is, she uses the disputed domain name for phishing.
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.”).
The disputed domain name is confusingly similar to Complainant’s ORACLE mark because the domain incorporates the entire mark and merely adds the term “corporate,” a generic term or one that is descriptive of Complainant’s business, and the “.com” gTLD. Panels have held that adding either generic or descriptive terms is not sufficient to distinguish a respondent’s domain from a complainant’s mark. See Am. Express Co. v. MustNeed.com, FA 257901 (Forum June 7, 2004) (finding the respondent’s <amextravel.com> domain name confusingly similar to Complainant’s AMEX mark because the “mere addition of a generic or descriptive word to a registered mark does not negate” a finding of confusing similarity under Policy ¶ 4(a)(i)). Panels have also held that the affixation of “.com” gTLD is irrelevant to a Policy ¶ 4(a)(i) analysis. See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the mere addition of the generic top-level domain “.com” is insufficient to differentiate a disputed domain name from a mark). Thus, the Panel finds that the disputed domain name is confusingly similar to Complainant’s ORACLE mark, in the sense of the Policy.
Respondent is not commonly known by the domain name or any variation of the ORACLE mark. The Panel notes the WHOIS information for the disputed domain name lists the registrant as “Linda Brooks.” Panels have used WHOIS information as evidence to conclude that a Respondent is not commonly known by the terms of a domain. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). As such, the Panel finds that Respondent is not commonly known by the disputed domain name.
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not making a bona fide offering of goods and services or a legitimate noncommercial or fair use of the domain pursuant to Policy ¶¶ 4(c)(i) and (iii). The disputed domain name does not resolve to an active web site, but Respondent is using the disputed domain name to gain Internet users’ personal information by fraudulently posing as a job interviewer. Respondent uses the domain in an e-mail address (linda@oraclecorporate.com), which it lists in certain fake job listings at the employment website <backpage.com>. When an unsuspecting job seeker finds these listings and sends a message to the above e-mail address, they are invited to participate in an online job interview. In one specific instance, the job seeker was offered a job and was then asked by the interviewer for personal information, including the job seeker’s full name, current home address, cell phone numbers, and e-mail address. This constitutes phishing. Panels have held that phishing does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) (“The Panel finds that Respondent’s attempt to “phish” for users’ personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”). Therefore, the Panel finds that Respondent is not making a bona fide offering of goods and services or a legitimate noncommercial or fair use of the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for her use of Complainant’s famous mark. 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 noted above, Respondent is using the prestige of the ORACLE mark to attract job applicants, obtain personal information from the applicants, and then use and/or sell the applicants’ information, presumably for commercial gain. Thus the Panel finds bad faith pursuant to Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“the Panel finds the respondent is appropriating the complainant’s mark in a confusingly similar domain name for commercial gain, which is evidence of bad faith registration and use pursuant to Policy ¶4(b)(iv).”).
Further, as already noted, Respondent’s attempt to gather personal information through the use of the disputed domain name constitutes phishing, in violation of Policy ¶ 4(a)(iii). See Hess Corp. v. GR, FA 770909 (Forum Sept. 19, 2006) (determining that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name). For this reason, the Panel finds that Respondent engaged in bad faith registration and use per Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <oraclecorporate.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: September 5, 2016
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