DECISION

Chevron Texaco Corporation v. Domains a/k/a Best Domains

Claim Number: FA0212000137035

PARTIES

Complainant is Chevron Texaco Corporation, San Ramon, CA (“Complainant”) represented by Mary A. Francis, of Chevron Texaco Corporation.  Respondent is Domains a/k/a Best Domains, Bronx, NY (“Respondent”).

REGISTRAR AND DISPUTED DOMAIN NAME 

The domain name at issue is <wwwchevron.com>, registered with Enom, Inc.

PANEL

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.

James P. Buchele as Panelist.

PROCEDURAL HISTORY

Complainant submitted a Complaint to the National Arbitration Forum (the “Forum”) electronically on December 10, 2002; the Forum received a hard copy of the Complaint on December 12, 2002.

On December 10, 2002, Enom, Inc. confirmed by e-mail to the Forum that the domain name <wwwchevron.com> is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, Inc. registration agreement and has thereby agreed to resolve domain-name disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).

On December 18, 2002, a Notification of Complaint and Commencement of Administrative Proceeding (the “Commencement Notification”), setting a deadline of January 7, 2003 by which Respondent could file a Response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts, and to postmaster@wwwchevron.com by e-mail.

Having received no Response from Respondent, using the same contact details and methods as were used for the Commencement Notification, the Forum transmitted to the parties a Notification of Respondent Default.

On January 16, 2003, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, the Forum appointed James P. Buchele 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.”  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.

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

PARTIES’ CONTENTIONS

A. Complainant makes the following assertions:

1. Respondent’s <wwwchevron.com> domain name is confusingly similar to Complainant’s CHEVRON mark.

2. Respondent does not have any rights or legitimate interests in the <wwwchevron.com> domain name.

3. Respondent registered and used the <wwwchevron.com> domain name in bad faith.

B. Respondent failed to submit a Response in this proceeding.

FINDINGS

Complainant, Chevron Texaco Corporation, holds 44 U.S. trademark registrations for the CHEVRON mark (e.g. U.S. Reg. No. 364,683, registered on February 14, 1939). Complainant also holds hundreds of additional trademark registrations worldwide.

Under the CHEVRON mark, Complainant provides energy-related goods and services, including vehicle fuels and lubricants and service station services. Complainant also operates a website at <chevron.com>.

Respondent, Domains a/k/a Best Domains, registered the <wwwchevron.com> domain name on January 10, 2002, and is not licensed or authorized to use the CHEVRON mark for any purpose. Respondent uses the disputed domain name to redirect Internet users to an anti-abortion website at <abortionismurder.org>.

DISCUSSION

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.”

In view of Respondent's failure to submit a Response, the Panel shall decide this administrative proceeding on the basis of the Complainant's undisputed representations pursuant to paragraphs 5(e), 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) of the Policy requires that the 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.

Identical and/or Confusingly Similar

Complainant has established rights in the CHEVRON mark through registration with the United States Patent and Trademark Office, other governmental organizations worldwide, and through widespread and continuous use of the mark in commerce.

Respondent’s <wwwchevron.com> domain name is confusingly similar to Complainant’s CHEVRON mark. Respondent’s registration exemplifies “typosquatting,” taking advantage of Internet users who, when entering in a Uniform Resource Locator (“URL”), make a common typographical error. In this case, Internet users who are hoping to arrive at Complainant’s “www.chevron.com” domain name and corresponding website but inadvertantly fail to add a period after “www” will unintentionally reach Respondent’s <wwwchevron.com> domain name. Typosquatting does not prevent a finding of confusing similarity between Respondent’s domain name and Complainant’s mark, especially as the dominant feature of the domain name remains Complainant’s mark. See Bank of Am. Corp. v. InterMos, FA 95092 (Nat. Arb. Forum Aug. 1, 2000) (finding that Respondent’s domain name <wwwbankofamerica.com> is confusingly similar to Complainant’s registered trademark BANK OF AMERICA because it “takes advantage of a typing error (eliminating the period between the www and the domain name) that users commonly make when searching on the Internet”).

Accordingly, the Panel finds that the <wwwchevron.com> domain name is confusingly similar to Complainant’s CHEVRON mark under Policy ¶ 4(a)(i).

Rights or Legitimate Interests

Policy paragraphs 4(c)(i)-(iii) list three circumstances illustrative of situations where Respondent would have rights or legitimate interests in the <wwwchevron.com> domain name. As Respondent failed to respond to the Complaint, a showing by Complainant that none of these three circumstances are present is sufficient for Complainant to meet its burden under the Policy. At that point, the burden shifts to Respondent to rebut Complainant’s allegations. See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (finding that once Complainant asserts that Respondent has no rights or legitimate interests in respect of the domain, the burden shifts to Respondent to provide credible evidence that substantiates its claim of rights and legitimate interests in the domain name).

In these circumstances, Respondent’s failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name. See Am. Online, Inc. v. AOL Int'l, D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests where Respondent fails to respond); see also Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a Response, Respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name).

Respondent redirects Internet users who inadvertently arrive at the <wwwchevron.com> domain name to an anti-abortion website at <abortionismurder.org>. Capitalizing on Complainant’s mark to divert Internet users seeking Complainant’s website to content unrelated to Complainant is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), nor is it a legitimate noncommercial or fair use of a domain name under Policy ¶ 4(c)(iii). See Rittenhouse Dev. Co. v. Domains For Sale, Inc., FA 105211 (Nat. Arb. Forum Apr. 8, 2002) (finding that, by linking the confusingly similar domain name to an “Abortion is Murder” website, Respondent has not demonstrated a right or legitimate interest in the disputed domain name); see also Toronto-Dominion Bank v. Karpachev, 188 F.Supp.2d 110, 114 (D. Mass. 2002) (finding that, because Respondent's sole purpose in selecting the domain names was to cause confusion with Complainant's website and marks, its use of the names was not in connection with the offering of goods or services or any other fair use).

Respondent’s contact information states that it is “Domains” or “Best Domains,” and no evidence supports the proposition that it has ever been “commonly known by” the name WWWCHEVRON or <wwwchevron.com>. As such, the Panel finds that Complainant has met its burden in showing that Respondent does not fall under the ambit of Policy ¶ 4(c)(ii). See Vestel Elektronik Sanayi ve Ticaret AS v. Kahveci, D2000-1244 (WIPO Nov. 11, 2000) (finding that “merely registering the domain name is not sufficient to establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy”); see also RMO, Inc. v. Burbridge, FA 96949 (Nat. Arb. Forum May 16, 2001) (Interpreting Policy ¶ 4(c)(ii) "to require a showing that one has been commonly known by the domain name prior to registration of the domain name to prevail").

Accordingly, the Panel finds that Respondent does not have rights or legitimate interests in the <wwwchevron.com> domain name under Policy ¶ 4(a)(ii).

Registration and Use in Bad Faith

While Policy paragraph 4(b) lists four circumstances evidencing bad faith use and registration of a domain name, that list is not meant to be all-inclusive. See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (determining that Policy paragraph 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith); see also Home Interiors & Gifts, Inc. v. Home Interiors, D2000-0010 (WIPO Mar. 7, 2000) (“[J]ust because Respondent’s conduct does not fall within the ‘particular’ circumstances set out in ¶ 4(b), does not mean that the domain names at issue were not registered in and are not being used in bad faith”).

One example of bad faith use and registration not directly illustrated in the Policy, yet nevertheless representing bad faith use and registration of a domain name under Policy ¶ 4(a)(iii), is typosquatting. See AltaVista Co. v. Stoneybrook, D2000-0886 (WIPO Oct. 26, 2000) (awarding <wwwalavista.com>, among other misspellings of altavista.com, to Complainant); see also Dow Jones & Co. v. Powerclick, Inc., D2000-1259 (WIPO Dec. 1, 2000) (awarding domain names <wwwdowjones.com>, <wwwwsj.com>, <wwwbarrons.com> and <wwwbarronsmag.com> to Complainants). Respondent’s registration and use of the <wwwchevron.com> domain name qualifies as typosquatting (simply adding a “www” prefix to a mark in which another has rights exemplifies typosquatting) and therefore evidences bad faith use and registration.

Given the nature of the disputed domain name and the notoriety of Complainant’s mark, bad faith registration of the disputed domain name can be also be inferred from the fact that Respondent had actual knowledge of Complainant’s mark when it registered the infringing domain name and redirected it to the <abortionismurder.org> website. Such registration and use is another nonenumerated example of bad faith under Policy ¶ 4(a)(iii). See Digi Int’l v. DDI Sys., FA 124506 (Nat. Arb. Forum Oct. 24, 2002) (holding that “there is a legal presumption of bad faith, when Respondent reasonably should have been aware of Complainant’s trademarks, actually or constructively”); see also Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18. 2000) (finding that Respondent had actual and constructive knowledge of Complainant’s EXXON mark given the worldwide prominence of the mark and thus Respondent registered the domain name in bad faith).

Respondent has exhibited a pattern of registering well-known trademarks preceded by the “www” prefix, and redirecting those domain names to the <abortionismurder.org> website. Respondent registered the <wwwshell.com> domain name, incorporating the trademark of another oil company, and redirected the domain name to the <abortionismurder> website. Moreover, a company named “Domains For Sale, Inc.” with the same street address, pattern of registering domain names that incorporate trademarks with a “www” attached, and method of redirecting Internet users to <abortionismurder.org>, has been brought before previous panels. See Prade S.A. v. Domains For Sale, Inc., D2002-0512 (WIPO Date); see also Peabody Management, Inc. v. John Barry, d/b/a Domains For Sale, Inc., D2002-0552 (WIPO Date); see also United Artists Theatre Circuit, Inc. v. Domains For Sale, Inc., D2002-0005 (WIPO Date). In each of these cases the panel found for the complainant. The Panel infers from these uncontested facts that Respondent in this dispute was also the respondent in these previous disputes, and is in reality the notorious cybersquatter John Barry. Through Respondent’s pattern of preventing trademark holders (including Complainant) from reflecting their marks online, Respondent’s activity runs afoul of Policy ¶ 4(b)(ii). See Encyclopaedia Britannica Inc. v. Shedon.com, D2000-0753 (Sept. 6, 2000) (finding bad faith where the Respondent engaged in the practice of registering domain names containing the trademarks of others); see also Armstrong Holdings, Inc. v. JAZ Assoc., FA 95234 (Nat. Arb. Forum Aug. 17, 2000) (finding that Respondent violated Policy ¶ 4(b)(ii) by registering multiple domain names which infringe upon others’ famous and registered trademarks).

Accordingly, the Panel finds that Respondent registered and used the <wwwchevron.com> domain name in bad faith, and Policy ¶ 4(a)(iii) is satisfied.

DECISION

Having established all three elements under ICANN Policy, the Panel concludes that relief shall be hereby GRANTED.

Accordingly, it is Ordered that the <wwwchevron.com> domain name be TRANSFERRED from Respondent to Complainant.

James P. Buchele, Panelist

Dated: January 20, 2003

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