The Complainant is CITGO Petroleum Corporation of Houston, Texas, United States of America (“United States”), represented by Jones Day, United States.
The Respondent is [name redacted] of Houston, Texas, United States.1 2. The Domain Name and Registrar
The disputed domain name is registered with GoD, LLC (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 11, 2016. On July 12, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 13, 2016, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 4, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 8, 2016.
The Center appointed Richard G. Lyon as the sole panelist in this matter on August 12, 2016. The Panel finds that it was properly constituted and has jurisdiction to decide this administrative proceeding. The Panel has submitted his Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant refines and markets petroleum and other industrial products in the United States and other countries. It holds numerous trademarks, duly registered on the Principal Register of the United States Patent and Trademark Office (USPTO), for CITGO and CITGO in combination with product-descriptive words; the earliest of these submitted with the Complaint dates to 1965.
According to the Complaint the disputed domain name is registered in the name of an employee of the Complainant. The address in the Registrar’s verification response is the same as the Complainant’s address. When the Panel attempted to access a website using the disputed domain name he received a standard Google error message. Details of an alleged earlier use of the disputed domain name are set forth in Sections 5.A and 6.C below.
On May 16 and June 2 and 3, 2016, the Complainant’s counsel wrote cease-and-desist letters to the Respondent, addressed to the proxy registration service under which the disputed domain name had been registered. These letters were sent by email, with two letters addressed to the proxy service and the third to the email address for the registrant contained in the registration details. No reply was received. 5. Parties’ Contentions A. Complainant
The Complainant alleges as follows:
The disputed domain name is identical to certain of the Complainant’s USPTO-registered marks and confusingly similar to others. The Complainant has never authorized the Respondent to use its CITGO marks and there is no indication that the Respondent has been commonly known by that term. The Respondent’s only apparent use of the disputed domain name has been to conduct a phishing scheme by holding itself out as a human resources employee of the Complainant and soliciting personally identifiable information from unsuspecting persons interested in employment with the Complainant. Such use is not legitimate under Policy precedent and indicative of registration and use in bad faith. Providing false contact information, notably including the Complainant’s address and an employee of the Complainant, further demonstrates registration and use in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar; Rights or Legitimate Interests
The Complainant has met its burden of proof under clauses (i) and (ii) of paragraph 4 of the Policy. The disputed domain name’s dominant feature, “Citgo”, is identical to the Complainant’s USPTO-registered trademarks. Having made its prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, the burden of production shifts to the Respondent to demonstrate the contrary. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, paragraph 2.1. The Respondent has submitted and the Panel can find no indication of any bona fide use of the disputed domain name. B. Registered and Used in Bad Faith
The Complainant correctly argues that use of the disputed domain name for a scam such as phishing demonstrates bad faith for Policy purposes. See, e.g., Terex Corporation v. Williams Sid, Partners Associate,WIPO Case No. D2014-1742; Endemol Netherland B.V v. David Williams,WIPO Case No. D2010-1728. As with any allegations in a UDRP proceeding, the factual underpinning for phishing must be proven, not simply alleged. See Alliance Healthcare Services Inc. v. [Name redacted] / Whois Agent, Whoisprivacy Protection Service Inc.,WIPO Case No. D2015-1666 (similar allegations; complaint denied in part because “[t]he Complainant submits no evidence to support any of these factual allegations.”); Endemol Netherland B.V v. David Williams, supra (similar allegations; “The Complainant must provide evidence of all the elements of paragraph 4(a) of the Policy. As the decision to transfer or cancel a domain name may have serious consequences for the domain name holder, the evidence should be sufficient in all respects to support such a decision. The absence of a Response from the Respondent, as in this case, does not discharge the Panel from its duty to establish that the evidence is sufficient.”) Has the Complainant here provided evidence to support its charges?
Given that the Respondent’s “contact details” have been falsified, the Complainant may of course be excused for not including evidence of many details of the accused scheme, such as the “true identity” or address of the Respondent. The phishing scheme, if it occurred, was perforce secret and expressly intended to be hidden from the Complainant. Without discovery or other pretrial means available in civil litigation the Complainant likely lacks the ability even to guess at such matters. The Panel will accordingly evaluate the sufficiency of the Complainant’s proof based upon what information was within the Complainant’s control 2 or could have been obtained with reasonable diligence.3
The Complainant has not included all the evidence available to it. For example, an affidavit from its employee whose name was allegedly hijacked or his supervisor, verifying employment with the Complainant and disclaiming any connection with the disputed domain name, would have been virtually conclusive. Three pieces of proof in the record tip the preponderance of the evidence in the Complainant’s favor. The first is the identity of the street addresses of the parties. Even if that address be a skyscraper with scores of offices it is wildly unlikely that the Respondent actually resides or maintains an office at the Complainant’s location. Its furnishing the Registrar with the Complainant’s address indicates both knowledge of the Complainant and an attempt to target it. The selection of the Complainant’s name as the dominant feature of the disputed domain name similarly lacks an innocent explanation. The Complainant’s CITGO marks employ a coined term, not an everyday English word. Inclusion of “Citgo” in the disputed domain name was not coincidental. Finally and most importantly the Complainant submits a copy of a letter to a prospective employee from an email address at the disputed domain name implying an offer of employment from the Complainant and requesting personally identifiable information. A comparable letter was the principal evidence in the Terex case, supra. Cumulatively this evidence suffices to establish bad faith in registration and use, satisfying the requirements of paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Richard G. Lyon
Sole Panelist
Date: August 18, 2016
1 The Panel chooses to redact the name of the registrant of the disputed domain name, which as noted in the text is alleged to be the name of an employee of the Complainant who had nothing to do with the disputed domain name. As will be clear from this Decision the exact identity of the registrant does not affect the Panel’s analysis or Decision.
2 Brooke Bollea, a.k.a Brooke Hogan v. Robert McGowan,WIPO Case No. D2004-0383.
3 Advance Magazine Publishers Inc. v. Domains By Proxy LLC / Marculles Brackard, Rock Your Fashion Inc,WIPO Case No. DCO2016-0006.
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