Exxon Mobil Corporation v. Ahmet Peker / Antalya Web Tasarım
Claim Number: FA1908001856220
Complainant is Exxon Mobil Corporation (“Complainant”), represented by Molly Buck Richard of Richard Law Group, Inc., Texas, USA. Respondent is Ahmet Peker / Antalya Web Tasarım (“Respondent”), Turkey.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <exxonmobilaccountonline.net>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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.
Debrett G. Lyons as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 8, 2019; the Forum received payment on August 8, 2019.
On Aug 09, 2019, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <exxonmobilaccountonline.net> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.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 12, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 3, 2019 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@exxonmobilaccountonline.net. Also on August 12, 2019, 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 5, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Debrett G. Lyons 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 asserts trademark rights in EXXONMOBIL. Complainant holds a national registration for that trademark. Complainant submits that the disputed domain name is confusingly similar to its trademark.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant alleges that Respondent registered and used the disputed domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The factual findings pertinent to the decision in this case are that:
1. Complainant is an oil and gas company which owns, inter alia, the trademark, EXXONMOBIL, registered with the United States Patent and Trademark Office (“USPTO”) as Reg. No. 2,510,978, from November 20, 2001;
2. the disputed domain name was registered on May 8, 2019 and resolves to a website which uses Complainant’s trademark and poses as a site controlled by Complainant; and
3. there is no relationship between the parties and Complainant has not authorized Respondent to use its trademark or to register any domain name incorporating the trademark.
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.
Paragraph 4(a)(i) of the Policy requires a two-fold enquiry—a threshold investigation into whether a complainant has rights in a trademark, followed by an assessment of whether the disputed domain name is identical or confusingly similar to that trademark.
It is well established by decisions under this Policy that a trademark registered with a national authority is evidence of trademark rights (see, for example, Mothers Against Drunk Driving v. phix, FA 174052 (Forum Sept. 25, 2003)). Complainant therefore has rights as it provides proof of its registration of the trademark EXXONMOBIL with the USPTO, a national trademark authority.
For the purposes of comparison of the disputed domain name with the trademark the gTLD, “.net”, can be disregarded (see, for example, Am. Int’l Group, Inc. v. Domain Admin. Ltd., FA 1106369 (Forum Dec. 31, 2007)). The disputed domain name then differs from the registered trademark by addition of the descriptive words, “account online”, an expression having no distinctive value in terms of the overall impact of the compared terms. The Panel finds the domain name confusingly similar to the trademark (see, for example, MTD Products Inc v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”)).
The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy.
Paragraph 4(c) of the Policy states that any of the following circumstances, in particular but without limitation, if found by the Panel to be proved based on its evaluation of all evidence presented, shall demonstrate rights or legitimate interests to a domain name for purposes of paragraph 4(a)(ii) of the Policy:
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant need only make out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name, after which the onus shifts to Respondent to rebut that case by demonstrating those rights or interests (see, for example, Do The Hustle, LLC v. Tropic Web, D2000‑0624 (WIPO Aug. 21, 2000)).
The true identity of the domain name registrant is shielded by a privacy service but in consequence of these proceedings the Registrar advised that the underlying owner is “Ahmet Peker/Antalya Web Tasarım”.
There is no evidence that Respondent might be commonly known by the disputed domain name and there is no evidence that Respondent has any trademark rights. Complainant states that there is no association between the parties.
The evidence is that the domain name directs internet users to a website which mimics an official website of Complainant and invites internet users to apply for a credit card facility, ostensibly sponsored by Complainant. Such fraudulent use is clearly not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the disputed domain name (see, for example, Phillips 66 Company v. Hulmiho Ukolen / Poste restante, FA1904001840730 (Forum May 24, 2019)).
A prima facie case has been made and so the onus shifts to Respondent. In the absence of a Response, the Panel finds that Respondent has not discharged the onus and finds the Respondent has no rights or interests.
Complainant has satisfied the second limb of the Policy.
Complainant must prove on the balance of probabilities both that the disputed domain name was registered in bad faith and used in bad faith.
Further guidance on that requirement is found in paragraph 4(b) of the Policy, which sets out four circumstances, any one of which is taken to be evidence of the registration and use of a domain name in bad faith if established.
The four specified circumstances are:
‘(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, respondent has intentionally attempted to attract, for commercial gain, internet users to respondent’s website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the site or location.’
The Panel finds that Respondent’s conduct falls under paragraph 4(b)(iv) above. The Panel has already found the domain name to be confusingly similar to the trademark. The use of the domain name is for commercial gain in one form or another. The Panel finds that Respondent’s primary motivation in registering the disputed domain name was to attract internet users to an online location by creating confusion of the kind described in paragraph 4(b)(iv) (see, for example, Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”).
Accordingly, the Panel finds that the third and final element of the Policy is satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <exxonmobilaccountonline.net> domain name be TRANSFERRED from Respondent to Complainant.
Debrett G. Lyons, Panelist
Dated: September 8, 2019
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