Hess Corporation v. Rudolf Hess
Claim Number: FA1608001689684
Complainant is Hess Corporation (“Complainant”), represented by Lauren Emerson of Baker Botts L.L.P., New York, United States. Respondent is Rudolf Hess (“Respondent”), Germany.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <hesscareers.com>, registered with Hebei Guoji Maoyi (Shanghai) LTD dba HebeiDomains.com.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 17, 2016; the Forum received payment on August 17, 2016.
On August 23, 2016, Hebei Guoji Maoyi (Shanghai) LTD dba HebeiDomains.com confirmed by e-mail to the Forum that the <hesscareers.com> domain name is registered with Hebei Guoji Maoyi (Shanghai) LTD dba HebeiDomains.com and that Respondent is the current registrant of the name. Hebei Guoji Maoyi (Shanghai) LTD dba HebeiDomains.com has verified that Respondent is bound by the Hebei Guoji Maoyi (Shanghai) LTD dba HebeiDomains.com 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 26, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 15, 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@hesscareers.com. Also on August 26, 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 23, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 uses its HESS mark in connection with its integrated oil and gas company. Complainant has registered the HESS mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 832,393, registered July 25, 1967), which demonstrates Complainant’s rights in its mark. See Compl., at Attached Annex 2. Respondent’s domain is confusingly similar to Complainant’s mark as it wholly incorporates the mark and merely adds the generic term “careers” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights and legitimate interests in the domain. Respondent is not commonly known by the terms of the domain, and Complainant has never granted Respondent permission to use the HESS mark or any variant thereof. Further, Respondent is not using the domain in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Rather, prior to the institution of this proceeding, the parked page to which the domain initially resolved sponsored links to third-party websites. See Compl., at Attached Annexes 6–7. Currently, the parked page is non-functional. See Compl., at Attached Annex 11. Additionally, Respondent is offering the domain for sale. See Compl., at Attached Annexes 8–9.
Respondent registered and is using the domain in bad faith. First, Respondent is offering the domain for sale. Second, Respondent’s initial use of the domain to host hyperlinks to third-party employment services websites is evidence of bad faith. Third, Respondent currently makes no active use of the domain. Fourth, because of Complainant’s widespread use and registration of its HESS mark, it is clear that Respondent registered the domain with at least constructive knowledge of Complainant’s mark and rights therein. Fifth, Respondent hid behind a privacy shield until this proceeding was instituted.
B. Respondent
Respondent failed to submit a Response in this proceeding. The disputed domain name was registered on January 4, 2016.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark HESS, that the Respondent has no rights or legitimate interests in or to the disputed domain name, and that the Respondent has engaged in bad faith use and registration.
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 Panel finds that the disputed domain name is confusingly similar to the Complainant’s valid and subsisting trademark. The Complainant has adequately plead its interest in the trademark HESS.
The Respondent arrives at the disputed domain name by merely adding the generic word “careers” and the gTLD “.com to the Complaint’s trademark. This is insufficient to distinguish the disputed domain name from the HESS trademark.
As such, the Panel finds that the disputed domain name is confusingly similar to the Complaint’s trademark.
The Panel further finds that the Respondent lacks any rights or legitimate interests in or to the disputed domain name. Respondent is not commonly known by the terms of the domain. Complainant has never granted Respondent permission to use the HESS mark or any variant thereof. The WHOIS information lists “Rudolf Hess” as registrant and Respondent has failed to provide any evidence for the Panel’s consideration. While Respondent seems to be commonly known by the terms of the disputed domain name, in fact, there is no basis in the available record to find Respondent commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).
Therefore, the Panel finds that the Respondent lacks any rights or legitimate interests in or to the disputed domain name.
Complainant alleges that Respondent is not using the domain in connection with a bona fide offering of goods or services, or a legitimate noncommercial or fair use. Rather, Complainant asserts that prior to the institution of this proceeding, the parked page, to which the disputed domain name initially resolved, featured sponsored links to third-party websites. See Compl., at Attached Annexes 6–7. Currently, according to Complainant, the parked page is non-functional. See Compl., at Attached Annex 11. Panels have determined that neither a respondent’s use of a domain to host links unrelated to a complainant, nor a respondent’s failure to make any active use of a domain, constitutes 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). See Constellation Wines U.S., Inc. v. Tex. Int’l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant); see also George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name).
Therefore, the Panel finds that Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii).
Complainant argues that Respondent is offering the domain for sale. Specifically, Complainant claims that as of August 16, 2016, the “Buy Now” price for the domain was listed as $4,750.00, and the minimum “Make an Offer” price was listed as $3,990.00. See Compl., at Attached Annexes 8–9. Panels have held that a respondent lacks rights and legitimate interests in a domain where it attempts to sell the domain for an amount in excess of its out-of-pocket costs associated with the acquisition of the domain. See Drown Corp. v. Premier Wine & Spirits, FA 616805 (Forum Feb. 13, 2006) (“Moreover, the Panel interprets Respondent’s offer to sell the domain name registration for $100,000 as evidence that Respondent lacks rights and legitimate interests in the disputed domain name pursuant to Policy ¶ 4(a)(ii).”).
Therefore, the Panel concludes that Respondent lacks rights and legitimate interests in the domain name.
The Panel finally concludes that the Respondent has engaged in bad faith use and registration of the disputed domain name. Complainant contends that Respondent is offering the domain for sale. See Compl., at Attached Annexes 8–9. Panels have decided that a respondent’s attempt to sell a domain for an amount that exceeds its out-of-pockets costs to acquire the domain is evidence of bad faith registration and use under Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the <gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name).
Therefore, the Panel finds that Respondent registered and is using the domain in bad faith in violation of Policy ¶ 4(b)(i).
Complainant alleges that Respondent’s initial use of the domain to host hyperlinks to third-party employment services websites is evidence of bad faith. Panels have concluded that a respondent’s use of a domain to divert Internet users from a complainant’s legitimate website to that of a respondent, for commercial gain, constitutes bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting).
For this reason as well, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Complainant also asserts that Respondent currently makes no active use of the domain. Panels have consistently agreed that a respondent’s failure to make any active use of a domain is evidence of bad faith under Policy ¶ 4(a)(iii). See DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
As such, the Panel finds that Respondent registered and is using the disputed domain name in bad faith per Policy ¶ 4(a)(iii).
Complainant claims that because of its widespread use and registration of its HESS mark, it is clear that Respondent registered the disputed domain name with at least constructive knowledge of Complainant’s mark and rights therein. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, the Panel finds, under the totality of the circumstances, that Respondent had actual knowledge of Complainant's mark and rights. It is extremely unlikely that an applicant would come up with the word “hess” and register it as a domain name unless they were well-aware of the Complainant’s rights. As the Respondent failed to file a response in this matter, there is no evidence in the record indicating otherwise.
As such, the Panel finds that the Respondent engaged in bad faith use and registration under 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 <hesscareers.com> domain name transferred from the Respondent to the Complainant.
Kenneth L. Port, Panelist
Dated: September 27, 2016
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