ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Halliburton Energy Services, Inc. v. Mark Ding Case No. D2023-0026 1. The Parties Complainant is Halliburton Energy Services, Inc., United States of America ("United States"), represented by Polsinelli PC Law firm, United States. Respondent is Mark Ding, United States. 2. The Domain Name and Registrar The disputed domain name is registered with NameCheap, Inc. (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on January 4, 2023. On January 4, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 4, 2023, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent (Privacy service provided by Withheld for Privacy ehf) and contact information in the Complaint. The Center sent an email communication to Complainant on January 9, 2023, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on January 9, 2023. The Center verified that the Complaint together with the amendment to 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 Respondent of the Complaint, and the proceedings commenced on January 19, 2023. In accordance with the Rules, paragraph 5, the due date for Response was February 8, 2023. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on February 14, 2023. The Center appointed Scott R. Austin as the sole panelist in this matter on February 22, 2023. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and page 2 Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background The following facts appear from the Complaint (as amended solely to add the Registrar-provided registrant information) and its annexes, which have not been contested by Respondent. Founded in 1919, Complainant is a Delaware corporation based in Houston, Texas, United States, and one of the world's largest providers of products and services to the oil and gas industry, providing a range of services from locating hydrocarbons and managing geological data to drilling and formation evaluation, well construction and completion, as well as optimizing production under the trademark HALLIBURTON (the "HALLIBURTON Mark"). Complainant has more than 40,000 employees, representing 130 nationalities, and operations in approximately 70 countries worldwide, and is one of the largest providers of products and services to the energy industry. Halliburton's annual revenues in 2019, 2020, and 2021, were USD 22.4 billion, USD 14.4 billion and USD 15.2 billion respectively. Complainant along with its corporate parent, the Halliburton Company and its other subsidiaries, is authorized to use the HALLIBURTON Mark, which Complainant shows has been continually used in commerce for more than 80 years. Complainant owns more than 370 trademark registrations in 60 countries worldwide for the HALLIBURTON Mark for its oil and gas industry related goods and services, including the following live, distinctive and well-known trademark registrations for the HALLIBURTON Mark registered with the United States Patent and Trademark Office ("USPTO"): United States Registration No. 2,575,819, HALLIBURTON, registered on June 4, 2002, for range of oil and gas related services in International Classes 37, 40, and 42, claiming a first use date for each Class of January 15, 1948; and United States Registration No. 2,575,840, HALLIBURTON, registered on June 4, 2002, for range of oil and gas related goods in International Classes 1, 6, 7, 9, and 16, claiming a first use date for each Class of May 6, 1957. Complainant also shows it incorporates the HALLIBURTON Mark into its registered domain name , registered to Complainant since October 17, 1995, used to promote its oil and gas industry services on its official website at "www.halliburton.com" (the "Official HALLIBURTON Mark Website"). The Official HALLIBURTON Mark Website features the HALLIBURTON Mark on each page with numerous images of its completed projects for stadiums, airport terminals and interstate highways, as well as its employee owners wearing hard hats with the HALLIBURTON Mark affixed. Little is known about Respondent, who appears to be a private individual who has provided a fraudulent postal address with street, city and province data located in China, but a postal code and country referencing the United States. Respondent registered the disputed domain name on September 28, 2020, and it resolves to an inactive website with a "403 forbidden" message. 5. Parties' Contentions A. Complainant Complainant contends that the disputed domain name is identical or confusingly similar to Complainant's trademark; that Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. page 3 B. Respondent Respondent did not reply to Complainant's contentions. 6. Discussion and Findings There are no exceptional circumstances within paragraph 5(e) of the Rules to prevent this Panel from determining the present dispute based upon the Complaint (as amended), notwithstanding the failure of any person to lodge a substantive formal Response in compliance with the Rules. Under paragraph 14 of the Rules, where a party does not comply with any provision of the Rules, the Panel shall "draw such inferences therefrom as it considers appropriate". Where no substantive Response is filed, however, Complainant must still make out its case in all respects under paragraph 4(a) of the Policy. To succeed, Complainant must demonstrate that the requirements for each of the elements listed in paragraph 4(a) of the Policy have been satisfied. The Panel will address its findings on each of these elements in more detail below. The standard of proof under the Policy is often expressed as the "balance of the probabilities" or "preponderance of the evidence" standard. Under this standard, an asserting party needs to establish that it is more likely than not that the claimed fact is true. See, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 4.2. A. Identical or Confusingly Similar Ownership of a nationally registered trademark constitutes prima facie evidence that the complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0, section 1.2.1. Complainant claims trademark rights in the HALLIBURTON Mark for its oil and gas industry services in its registrations for the HALLIBURTON Mark dating back to 2002. Sufficient evidence has been submitted in the form of electronic copies of valid and subsisting trademark registration documents in the name of Complainant and therefore, Complainant has demonstrated it has rights in the HALLIBURTON Mark. See Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen, WIPO Case No. D2014-0657. With Complainant's rights in the HALLIBURTON Mark established, the remaining question under the first element of the Policy is whether the disputed domain name is identical or confusingly similar to Complainant's HALLIBURTON Mark. It is well accepted that the first element functions primarily as a standing requirement and that the threshold test for confusing similarity involves a "reasoned but relatively straightforward comparison between the complainant's trademark and the disputed domain name". WIPO Overview 3.0, section 1.7. Prior UDRP panels have also held "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". See, L'Oréal, Lancôme Parfums et Beauté & Cie v. Jack Yang, WIPO Case No. D2011-1627; see also, Wal-Mart Stores, Inc. v. MacLeod d/b/a/ For Sale, WIPO Case No. D2000-0662. A side-by-side comparison between the disputed domain name and Complainant's Mark shows the disputed domain name is essentially identical to the HALLIBURTON Mark as well as the official domain name used for Complainant's Official HALLIBURTON Mark Website. Complainant's HALLIBURTON Mark is incorporated in its entirety except the addition of an "h" in the middle of Complainant's distinctive mark and more specifically the "h" is adjacent to the subsequent letter "b" in the well-known HALLIBURTON mark. Complainant's registered HALLIBURTON Mark is incorporated into and remains recognizable in the disputed domain name, followed only by the Top-Level Domain ("TLD") ".com". page 4 Prior UDRP panels have found the TLD, being viewed as a standard registration requirement, may typically be disregarded under the paragraph 4(a)(i) analysis. See, WIPO Overview 3.0, section 1.11; see also L'Oréal v. Tina Smith, WIPO Case No. D2013-0820. Complainant also contends that the disputed domain name is a purposeful misspelling of Complainant's HALLIBURTON Mark because the added "h" is adjacent to the subsequent letter "b" in the well-known HALLIBURTON Mark and must be considered confusingly similar to Complainant's trademark because the disputed domain name includes the added letter "h". As noted above, however, the distinctive elements of Complainant's mark remain. Prior panels have held that a deliberate misspelling of a trademark registered as a domain name, which is intended to confuse Internet users, must be confusingly similar by design. See WIPO Overview 3.0, section 1.9; See also Allstate Insurance Company v. Rakshita Mercantile Private Limited, WIPO Case No. D2011-0280. Based on the above, this Panel finds that neither the addition of the letter "h" to Complainant's registered HALLIBURTON Mark nor the gTLD ".com" would prevent a finding of confusing similarity between the disputed domain name and Complainant's well-known and more specifically as the "h" is adjacent to the subsequent letter "b" in the well-known HALLIBURTON mark, which otherwise remains identical as incorporated into the disputed domain name. Accordingly, the Panel finds the disputed domain name confusingly similar or identical to the HALLIBURTON Mark in which Complainant has rights and Complainant has satisfied its burden under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Under the second element of the Policy, a complainant is first required to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. If a complainant makes that showing, the burden of production on this element shifts to the respondent to come forward with relevant evidence of such rights or legitimate interests in the domain name. If the respondent fails to come forward with such evidence, a complainant is generally deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. See also, Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393. Complainant has established, prima facie, that Respondent lacks rights or legitimate interests in the disputed domain name. First, Complainant asserts that Respondent is not sponsored by or affiliated with Complainant in any way, nor has Complainant given Respondent permission or license to use Complainant's trademarks in any manner, including in domain names. Prior UDRP panels have held "In the absence of any license or permission from Complainant to use its trademark, no actual or contemplated bona fide or legitimate use of the Disputed Domain Name could reasonably be claimed". Sportswear Company S.P.A. v. Tang Hong, WIPO Case No. D2014-1875. Second, Complainant contends Respondent is not commonly known by the disputed domain name, which evinces a lack of rights or legitimate interests under Policy paragraph 4(c)(ii). Complainant has shown in the WhoIs information evidence submitted in its annexes that Respondent, identified as "Mark Ding" is not commonly known by the disputed domain name because it clearly bears no resemblance to the term the HALLIBURTON Mark or . Prior UDRP panels have held where no evidence, including the WhoIs record for the disputed domain name, suggests that Respondent is commonly known by the disputed domain name, then Respondent cannot be regarded as having acquired rights to or legitimate interests in the disputed domain name within the meaning of Policy paragraph 4(c)(ii). See Moncler S.p.A. v. Bestinfo, WIPO Case No. D2004-1049. Most importantly, Complainant's evidence shows the disputed domain name resolves to an inactive website. Respondent, therefore, is not making a legitimate noncommercial or fair use of the disputed domain name nor using it in connection with a bona fide offering of goods or services to confer a right or legitimate interest because there is no evidence the disputed domain name is being used at all. See Valero Energy Corporation and Valero Marketing and Supply Company v. Valero Energy, WIPO Case No. D2017-0075. page 5 These facts establish Complainant's prima facie showing. Respondent has not provided any basis on which that showing may be overcome. Complainant has successfully met its burden under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith Finally, Complainant must prove, by a preponderance of the evidence, that the disputed domain name has been registered and used in bad faith under paragraph 4(a)(iii) of the Policy. See, e.g., Hallmark Licensing, LLC v. EWebMall, Inc., WIPO Case No. D2015-2202. Paragraph 4(b) of the Policy sets out a nonexhaustive list of circumstances that point to bad faith conduct on the part of a respondent. The panel may, however, consider the totality of the circumstances when analyzing bad faith under Policy, paragraph 4(a)(iii) and may make a finding of bad faith that is not limited to the enumerated factors in Policy, paragraph 4(b). See Do The Hustle, LLC v. Tropic Web, WIPO Case No. D2000-0624. First, Complainant contends that since Complainant has developed a strong global reputation in the "HALLIBURTON" trademark, that Respondent was no doubt aware of the HALLIBURTON Mark and intentionally targeted them in making their decision to configure and register the disputed domain name so closely similar to Complainant's HALLIBURTON Mark. Given the widespread recognition of Complainant's HALLIBURTON Mark worldwide shown in the evidence noted under Section 4 above, including the United States, where Respondent appears to be located, the decades of registered use of the HALLIBURTON Mark prior to Respondent's assumed registration of the disputed domain name in September 2020, Respondent likely had actual knowledge of Complainant's rights when it registered the disputed domain name, which shows bad faith registration. See Alstom v. Domain Investments LLC, WIPO Case No. D2008-0287. Further the facts set forth above make it reasonable for the Panel to conclude it is more likely than not that Respondent targeted Complainant's trademark to use it to trade on Complainant's reputation and goodwill, and Respondent is found, therefore, to have registered and used the disputed domain name in bad faith. See Tudor Games, Inc. v. Domain Hostmaster, Customer ID No. 09382953107339 dba WhoIs Privacy Services Pty Ltd / Domain Administrator, Vertical Axis Inc., WIPO Case No. D2014-1754. Second, as noted in 6B above, Respondent is passively holding the disputed domain name based on the browser flag it generates: "403 Forbidden" which represents either non-use or linking to an inactive website. Complainant contends that the disputed domain name has never resolved to an active page, as it has remained inactive since its registration. Prior UDRP panels have found under the doctrine of passive holding that that the word bad faith "use" in the context of paragraph 4(a)(iii) does not require a positive act on the part of Respondent - instead, passively holding a domain name can constitute a factor in finding bad faith registration and use pursuant to Policy paragraph 4(a)(iii). WIPO Overview 3.0, Section 3.3. See Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003); see also Alitalia-Linee Aeree Italiane S.p.A v. Colour Digital, WIPO Case No. D2000-1260. The disputed domain name here is confusingly similar to Complainant's HALLIBURTON Mark, and Respondent has made no use of the disputed domain name, factors which this Panel agrees with prior decisions should be duly considered in assessing bad faith registration and use. See DCI S.A. v. Link Commercial Corp., WIPO Case No. D2000-1232 (concluding respondent's passive holding of the domain name satisfies Policy paragraph 4(a)(iii). Third, bad faith use also seems especially appropriate given the totality of facts here. Respondent registered the disputed domain name in 2020, decades after Complainant began using its HALLIBURTON Mark, Respondent has concealed its identity, and failed to submit a response or to provide any evidence of actual or contemplated good-faith use of the disputed domain name. Complainant's HALLIBURTON Mark has grown in recognition to the level of worldwide renown, supporting the implausibility of any good faith use to which the disputed domain name may now be put. The factors present here are well-settled as supporting a page 6 finding of bad faith use for passive holding or non-use of a disputed domain name that is confusingly similar to a complainant's mark. See, Instagram, LLC v. Asif Ibrahim, WIPO Case No. D2020-2552; WIPO Overview 3.0, Section 3.3. The Panel finds Complainant's arguments and evidence persuasive and has received no arguments or evidence from Respondent to the contrary. Considering all the circumstances, the Panel concludes that Respondent has registered and used the disputed domain name in bad faith and Complainant has satisfied 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 Complainant. /Scott R. Austin/ Scott R. Austin Sole Panelist Date: March 7, 2023
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