The Complainant is Anadarko Petroleum Corporation of Houston, Texas, United States of America (the “US”), represented by Adams and Reese LLP, US.
The Respondent is Alan Meltzer, location unknown. 2. The Domain Name and Registrar
The disputed domain name (the “Disputed Domain Name”) is registered with GoD, LLC. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 16, 2014. On June 17, 2014, the Center transmitted by email to GoD, LLC a request for registrar verification in connection with the Disputed Domain Name. On June 18, 2014, GoD, LLC transmitted by email to the Center its verification response confirming the Respondent as the registrant and providing contact details.
The Center verified that the Complaint satisfied the formal requirements of the .au Dispute Resolution Policy (the “Policy” or “.auDRP”), the Rules for .au Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .au Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 3, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 23, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 24, 2014.
The Center appointed John Swinson as the sole panelist in this matter on July 31, 2014. 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. 4. Factual Background
The Complainant is Anadarko Petroleum Corporation, a US oil and gas company. The Complainant conducts oil, natural gas and other exploration and production activities on every continent (except Antarctica).
The Complainant owns a number of trade mark registrations incorporating the term “Anadarko”, including the following:
- Australian Trade Mark Registration No. 1,576,815 for ANADARKO INTERNATIONAL ENERGY COMPANY (registered August 26, 2013);
- US Registration No. 1,435,026 for the service mark ANADARKO (registered March 31, 1987); and
- US Registration No. 3,587,176 for the service mark ANADARKO PETROLEUM CORPORATION (registered March 10, 2009).
The Complainant also owns the domain name .
The Respondent did not file a response, and consequently little information is known about the Respondent.
The Respondent registered the Disputed Domain Name on March 30, 2014. The Disputed Domain Name currently resolves to a Sedo parking page displaying variety of links, most of which relate to brokering. In the past, the website at the Disputed Domain Name featured oil and gas related links. 5. Parties’ Contentions A. Complainant
The Complainant makes the following submissions. Identical or Confusingly Similar
The Disputed Domain Name is identical to the Complainant’s ANADARKO trade mark. It is also confusingly similar to the Complainant’s other trade marks. Rights or Legitimate Interests
The Respondent has no rights or legitimate interests in the Disputed Domain Name for the following reasons:
- it has never been commonly known by the Disputed Domain Name;
- it has not used or made demonstrable preparations to use the Disputed Domain Name; and
- the Complainant has not authorized the Respondent to use any of its trade marks.
The Respondent is not making a legitimate noncommercial or fair use of the Disputed Domain Name without intent for commercial gain. The Respondent is using the Disputed Domain Name to operate a website which seeks to trade off the fame of the Complainant’s trade marks. The Respondent generates revenue through pay-per-click links. Further, the website features a link stating: “The domain may be for sale by its owner!” When this link is clicked, users are taken to a page where they can submit an offer to purchase the Disputed Domain Name. Registered or Subsequently Used in Bad Faith
The Respondent knew, or should have known, of the Complainant when it registered the Disputed Domain Name. At this time, the Complainant was listed as the 207th largest company in the US (according to Fortune Magazine). The Complainant is consistently ranked in the Fortune 500 (the Complainant provided evidence of its ranking each year from 2001 to 2014).
The Respondent is “seeking to reap profit from the goodwill associated with the Complainant’s famous marks”. The website at the Disputed Domain Name used to link to a page on Sedo (a domain marketplace) which invited users to submit offers to purchase the domain (no specific price was set). The Complainant emailed the Respondent and requested transfer of the Disputed Domain Name. The Respondent replied with an offer to sell for USD 1,500. (The listing on the Sedo page was also modified to display a selling price of USD 1,500.)
Additionally, the Respondent registered the Disputed Domain Name to prevent the Complainant from registering a domain that reflects the Complainant’s trade marks. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the Disputed Domain Name is identical or confusingly similar to a name, 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 Disputed Domain Name; and
(iii) the Disputed Domain Name has been registered or subsequently used in bad faith.
The onus of proving these elements remains on the Complainant even though the Respondent has not filed a response.
The Panel notes that although the Policy and the Uniform Domain Name Dispute Resolution Policy (the “UDRP”) are distinct policies, both share substantial similarities. Therefore, the Panel finds it appropriate to refer to UDRP precedent in certain instances when deciding this case. A. Procedural Matters
The Respondent failed to file a response. While this does not automatically result in a decision in favor of the Complainant, the Panel may draw appropriate inferences from the Respondent’s default (see e.g. Jean Heitz v. Ghidella, Rosalia,WIPO Case No. DAU2011-0023). B. Identical or Confusingly Similar
Paragraph 4(a)(i) of the Policy provides that the Complainant must establish that the Disputed Domain Name is identical or confusingly similar to a name, trade mark or service mark in which the Complainant has rights.
The Panel is satisfied that the Complainant is the holder of the various trade marks listed in Section 4. Factual Background, including the ANADARKO trade mark.
Second level domains, such as “.”, may be disregarded for the purposes of determining identity or confusing similarity under the Policy (see e.g. Pindan Pty Ltd v. Kre8 Brand Pty Ltd and Different Pty Ltd,WIPO Case No. DAU2013-0039).
The Panel finds that the Disputed Domain Name is identical to the Complainant’s ANADARKO trade mark. Further, the Disputed Domain Name is confusingly similar to the Complainant’s other trade marks incorporating ANADARKO (such as ANADARKO INTERNATIONAL ENERGY COMPANY and ANADARKO PETROLEUM CORPORATION).
The Complainant succeeds on the first element of the Policy. C. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy provides that the Complainant must establish that the Respondent has no rights or legitimate interests in the Disputed Domain Name.
The Panel finds that the Complainant has made out a prima facie case for the following reasons:
- the Respondent has no connection with the Complainant;
- the Complainant has not consented to the Respondent’s use of its trade marks;
- there is no evidence that the Respondent has been commonly known by the Disputed Domain Name; and
- the website that the Disputed Domain Name resolves to appears to be commercial in nature. It hosts a variety of pay-per-click links, which in the past appear to have been to the Complainant’s competitors. The Disputed Domain Name is not a dictionary or common word and is not being used in a descriptive sense (i.e. to describe the sponsored links hosted). In the absence of any evidence from the Respondent to the contrary, the Panel infers that it is being used to misleadingly divert consumers. This is not a fair commercial use of the Complainant’s trade mark, nor does it constitute a bona fide offering of goods or services.
The Respondent had the opportunity to demonstrate its rights or legitimate interests, but did not do so. In the absence of a response from the Respondent, the prima facie case established by the Complainant has not been rebutted and the Complainant succeeds on the second element of the Policy. D. Registered or Subsequently Used in Bad Faith
Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Disputed Domain Name has been registered or subsequently used in bad faith.
Paragraph 4(b) of the Policy enumerates several circumstances that are evidence of registration and use of a domain name in bad faith, including where “by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to a web site or other online location, by creating a likelihood of confusion with the complainant’s name or mark as to the source, sponsorship, affiliation, or endorsement of that web site or location or of a product or service on that web site or location” (paragraph 4(b)(iv)).
The Complainant is a well known oil and gas company. As such, it would be highly unlikely that the Respondent was unaware of the Complainant and its trade marks when it registered the Disputed Domain Name. A simple Google search on the term “anadarko” returns many results regarding the Complainant. The Respondent registered the Disputed Domain Name (which is identical to the Complainant’s ANADARKO trade mark) and used it to direct users to a “link farm” website of advertisements offering various goods and services (in the past, these links related to oil and gas, and likely directed users to the Complainant’s competitors). It can be reasonably inferred that the Respondent is profiting from the website through “click-through revenue”. As such, the Panel is of the opinion that the Respondent is using the Disputed Domain Name to intentionally attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant’s well-known ANADARKO trade mark as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. The Panel is of the view that the Respondent is trading off the Complainant’s substantial reputation. This constitutes bad faith (see e.g. Cynthia Ann Crawford v. Julian S. Garcia,WIPO Case No. D2012-2454 and cases cited therein).
Paragraph 4(b)(i) of the Policy provides that bad faith can be evidenced where there are “circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to another person for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name”.
The website at the Disputed Domain Name contains a link “BUY THIS DOMAIN The domain Anadarko. may be for sale by its owner!”. This links to a page that states “This premium domain is for sale!”, lists the sale price as USD 1,500 and provides a facility for interested parties to “Buy Now”. The Respondent has also offered to sell the Disputed Domain Name to the Complainant for USD 1,500, in response to a cease and desist email from the Complainant (the email also requested that the Respondent transfer the Disputed Domain Name to the Complainant).
Out-of-pocket costs include the costs of obtaining, registering, and maintaining a domain name. Panels consider “excessive” out-of-pocket costs on a case-by-case basis. This Panel is of the view that USD 1,500 would exceed the Respondent’s out-of-pocket costs.
In summary, the Panel considers it reasonable to conclude that the Respondent was aware of the Complainant and its trade marks (including the ANADARKO trade mark) and registered the Disputed Domain Name for the purposes of making undue profits by selling the Disputed Domain Name to the Complainant or one of its competitors for a price in excess of the Respondent’s out-of-pocket expenses, while in the meantime generating revenue through sponsored links. The Respondent provided no evidence to the contrary.
In light of the above, the Panel finds that the Complainant has succeeded on the third element of the Policy. 7. Decision
For all 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.
John Swinson
Sole Panelist
Date: August 10, 2014
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