The Complainant is Cenovus Energy Inc., Canada, represented by Gowlings WLG LLP, Canada.
The Respondent is WhoisGuard Protected, WhoisGuard, Inc., Panama / Oyetunji Felix, Nigeria. 2. The Domain Name and Registrar
The disputed domain name, The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 3, 2020. On September 3, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 3, 2020, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 4, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 4, 2020. The Center verified that the Complaint [together with the amendment to the Complaint/amended 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 September 7, 2020. In accordance with the Rules, paragraph 5, the due date for Response was September 27, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 28, 2020. The Center appointed Tony Willoughby as the sole panelist in this matter on October 2, 2020. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. The invitation to the Complainant to file an amendment to the Complaint stemmed from the fact that when registering the Domain Name the underlying registrant, Oyetunji Felix, used the services of a privacy service, WhoisGuard Protected, WhoisGuard, Inc. The original Complaint named the privacy service as the Respondent, that being the name appearing in response to a WhoIs search against the Domain Name. The identity of the underlying registrant only came to light in the Registrar’s response to the Center’s registrar verification request. The amended Complaint adds the name of the underlying registrant, Oyetunji Felix, as a Respondent. For the purposes of this decision the Panel treats the underlying registrant, Oyetunji Felix, as the Respondent. When submitting the amended Complaint, the Complainant suggested to the Center that Oyetunji Felix’s name should be redacted from the published decision. The Panel declines to do so. The issue is dealt with in Section 6E below. 4. Factual Background The Complainant is a Canadian oil company. It is the registered proprietor of numerous trade mark registrations covering CENOVUS, the name under which it trades. One such registration is Canadian registration TMA807303 registered on September 22, 2011 (application filed September 11, 2008) CENOVUS (word) for various goods and services relevant to its area of business. The Domain Name was registered on August 14, 2020 and is connected to a website falsely purporting to be a website of the Complainant. The website represents itself to be a website of “Cenovus Energy Inc.” inviting applications for jobs with the Complainant. The content is littered with grammatical errors (see for example the passage quoted in section 6D below). Applicants are invited to send emails to a certain email address, which cannot sensibly be an email address of the Complainant. Moreover, a visit to the website today by the Panel elicited a pop-up Safari message: “This Connection is Not Private – this website may be impersonating “cenovuscareers.com” to steal your personal or financial information. You should go back to the previous page.” The website requires job applicants to pay a so-called “tax clearance fee of CAD140”. 5. Parties’ Contentions A. Complainant The Complainant contends that the Domain Name is confusingly similar to its CENOVUS trade mark; that the Respondent has no rights or legitimate interests in respect of the Domain Name; and that the Domain Name has been registered and is being used in bad faith. Essentially, the Complainant contends that the website to which the Domain Name is connected is a fraudulent use of the Complainant’s CENOVUS trade mark designed to extract money from unsuspecting Internet users, believing the website to be a careers website of the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. General According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that: (i) the Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and (ii) the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. B. Identical or Confusingly Similar The Domain Name comprises the name “cenovus”, the word “careers” and the “.com” generic Top-Level Domain (“gTLD”) identifier. Section 1.7 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) explains the test for identity or confusing similarity under the first element of the Policy and includes the following passage: “While each case is judged on its own merits, in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.” The Complainant’s CENOVUS trade mark is readily recognizable in its entirety in the Domain Name. The Panel finds that the Domain Name is confusingly similar to a trade mark in which the Complainant has rights. C. Rights or Legitimate Interests From the facts set out in section 4 above and the passage from the Respondent’s website quoted in Section 6D below, it is apparent that the Respondent registered the Domain Name for the purpose for which he is using it, namely to perpetrate a fraud by deceiving Internet users into believing that the website is an official careers website of the Complainant. Plainly, such a use cannot give rise to any rights or legitimate interests in respect of the Domain Name in the hands of the Respondent. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name. D. Registered and Used in Bad Faith The flavour of the Respondent’s website is well illustrated in the following passage: “More Enquiries on the ‘TAX CLEARANCE FEE’ the tax clearance fee is the fee all candidates pay before they will be allowed to get to Canada. And it is now due to the pandemic. We need up to 20 Workers from each country. So we will send our company private jet to pick you all up to Canada. So you have to pay the tax clearance fee which will cost you just CAD140$. Once you have pay this fee, we won’t charge you any more fee. Thanks for your co-operation.” The Respondent registered the Domain Name in bad faith with the intent to impersonate the careers department of the Complainant and is using it fraudulently to extort the so-called “Tax Clearance Fee” of CAD140 from the job applicants. The Panel finds that the Domain Name has been registered and is being used in bad faith within the meaning of paragraph 4(a)(iii) of the Policy. E. Name Redaction When filing the amended Complaint on September 4, 2020 the Complainant included the following passage in the covering email to the Center: “Mr. Oyetunji Felix appears to be a student at Obafemi Awolowo University in Nigeria. While we cannot be certain, we suspect his identity has been misappropriated. If correct, this serves to further support a finding of bad faith. Furthermore, if this is indeed a case of personality misappropriation, WIPO should consider omitting Mr. Felix’s name from the decision when published.” If, as that passage contends, the Respondent is a student at Obafemi Awolowo University in Nigeria, there is nothing in the papers before the Panel to verify that fact. Moreover, there is nothing in the papers before the Panel to suggest that the Respondent’s identity has been stolen for the purpose of registering the Domain Name. The Panel does not accept that university students are incapable of perpetrating frauds of the kind evident in this case. It is certainly true that it is the practice of UDRP panels deciding cases under the Policy to redact the names of persons whose names only appear in the case, because their identities are likely to have been stolen by the perpetrators of the fraud. Ordinarily, in such cases where the individual concerned has been alerted to the filing of the complaint (e.g. because the fraudsters have taken the individual’s address in addition to their name), he or she will make direct contact with the Center to explain the position. In other cases it is obvious from the circumstances that the individual concerned is likely to have had nothing to do with the registration and use of the domain name in issue. In this case there is nothing before the Panel to justify redaction of the name of the Respondent. 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 Domain Name, Tony Willoughby
Sole Panelist
Date: October 9, 2020
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