Westmore · UDRP DecisionOnesubseacompany.com
The Panel ordered cancellation of <onesubseacompany.com>. It found the domain confusingly similar to the ONESUBSEA mark because it incorporated the mark as its dominant element and merely added the generic term “company.” Respondent lacked rights or legitimate interests because there was no evidence of bona fide, commonly known, or legitimate noncommercial use, and Respondent filed no response. Although Complainant did not provide concrete evidence supporting its allegations of a fraudulent employment and relocation-fee scheme, the Panel found registration and use in bad faith based on Respondent’s evident targeting of the OneSubsea company, the absence of any plausible legitimate use, and the blocking of archived website content through robots.txt.
The timeline behind onesubseacompany.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind onesubseacompany.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
This decision illustrates that serious allegations of phishing or employment fraud must be supported by concrete evidence before a panel will treat them as established. It also shows that a complainant may still prevail where the proven circumstances independently support targeting and passive-holding bad faith. Here, the combination of the entire mark with “company,” the lack of any demonstrated legitimate use, Respondent’s default, and blocked archive access supported cancellation without a finding that the alleged scam actually occurred.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Cameron, a Schlumberger company v. David Woodsen / Privacy protection service - whoisproxy.ru Case No. D2016-0642 1. The Parties Complainant is Cameron, a Schlumberger company, c/o Schlumberger of Houston, Texas, United States of America (“U.S.A”), internally represented. Respondent is David Woodsen of Boul.Saint-Regis Dorval, Canada / Privacy protection service - whoisproxy.ru of Moscow, Russian Federation. 2. The Domain Name and Registrar The disputed domain name <onesubseacompany.com> is registered with RU-CENTER-MSK (Regional Network Information Center, JSC dba RU-CENTER) (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 30, 2016. On April 4, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 5, 2016, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name that differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on April 7, 2016 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on April 12, 2016. The Complainant filed a further amended Complaint on April 15, 2016. The Center verified that the Complaint together with the 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 Respondent of the Complaint, and the proceedings commenced on April 18, 2016. In accordance with Rules, paragraph 5, the due date for Response was May 8, 2016. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 13, 2016. The Center appointed Roberto Bianchi as the sole panelist in this matter on May 23, 2016. 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 Complainant is a Schlumberger company. According to the Schlumberger’s (“www.slb.com”) website, Complainant and Schlumberger jointly own OneSubsea LLC, a limited liability company created in 2013 in Delaware 1 . OneSubsea LLC owns U.S. trademark ONESUBSEA, Registration No. 4627204, registered on October 28, 2014, filed on July 31, 2013, covering various goods and services related to the oil industry, and in particular to subsea oil and gas production and operations, in international classes 6, 7, 9, 35, 37, 38, 40, 41, 42 and 45. Complainant, with and through OneSubsea LLC, provides goods and services to the oil and gas industry worldwide, such as integrated solutions, products, systems and services for the subsea oil and gas market. The disputed domain name was registered on May 31, 2015. The website to which the disputed domain name resolves was inactive at the time of the Complaint. According to Complainant, prior to the Complaint the disputed domain name allegedly redirected to a phishing website. 5. Parties’ Contentions A. Complainant In its Complaint, Complainant contends as follows: The disputed domain name is identical or confusingly similar to the ONESUBSEA mark in which the Complainant has rights. Respondent is using the similarity of the disputed domain name to Complainant’s <onesubsea.com> domain name to send out fraudulent job offers from Complainant’s business group specializing in subsea oil and gas equipment, OneSubsea. Respondent added the term “company” to the end of “onesubsea” to create a similarity and confusion between Complainant’s domain name and the disputed domain name. Respondent even went so far as to link Respondent’s website “www.onesubseacompany.com” to Complainant’s website “www.onesubsea.com”. Then, when an individual navigates to Respondent’s website “www.onesubseacompany.com”, he/she automatically and secretly is routed to Complainant’s webpage “www.onesubsea.com”. This makes Respondent’s fraudulent job offers appear to be legitimate. Respondent also set up local Houston, Texas “7l3” area code telephone numbers and invited potential victims to call these phone numbers. These victims no doubt believe they are calling the real OneSubsea. Respondent then hired other individuals to impersonate real OneSubsea employees, conduct fake job interviews and offer jobs that do not actually exist. The unsuspecting job applicants are instructed to deliver “relocation fees” to Respondent. Once the funds for the “relocation fees” are delivered to Respondent, Respondent steals the money from the unsuspecting individual. There was never a job to offer or accept. There never was a legitimate job offer from Complainant’s OneSubsea and no need for relocation fees to be paid to anyone. In short, the Respondent is defrauding these victims and stealing their money. Respondent has no rights or legitimate interests in respect of the disputed domain name. There is no evidence of Respondent’s use of, or demonstrable preparations to use the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. Respondent has not been commonly known by the disputed domain name. Respondent has acquired no trademark or service mark rights. Respondent is not making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain misleadingly to divert consumers or to tarnish Complainant’s trademark. In fact, the exact opposite is true — Respondent is misleading consumers and tarnishing the name of OneSubsea. The disputed domain name was registered and is being used in bad faith. By using the disputed domain name, Respondent intentionally attempted to attract for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location. Respondent is using the disputed domain name to send out fraudulent job offers for OneSubsea, a business group within Schlumberger. While fraudulently representing itself as OneSubsea, Respondent offers unsuspecting individuals a (fake) job offer. These job applicants are enticed to deliver “relocation fees” to Respondent. Once these funds are delivered, Respondent steals the money. In short, there never was a legitimate job offer from OneSubsea and no need for relocation fees to be paid. Respondent simply defrauds individuals and steals their money. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Panel notes that Complainant Cameron, a Schlumberger company, together with the Schlumberger company itself, owns Onesubsea LLC, also a Schlumberger company. Since Complainant has shown that it is a parent company of OneSubsea LLC, which in turn owns the ONESUBSEA mark (see section 4 above), the Panel is satisfied that Complainant has rights in this mark for the purposes of the Policy. The Panel also notes that the disputed domain name consists of the ONESUBSEA mark as dominant element, plus the generic term “company” and the Top-Level Domain (“TLD”) “.com”. It is well established that the addition of a generic term (and the corresponding top level domain) does nothing to distinguish a domain name from the mark it incorporates. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.9 (“The addition of merely generic, descriptive, or geographical wording to a trademark in a domain name would normally be insufficient in itself to avoid a finding of confusing similarity under the first element of the UDRP. Panels have usually found the incorporated trademark to constitute the dominant or principal component of the domain name.”) Accordingly, the Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights. B. Rights or Legitimate Interests The Panel notes that according to the relevant WhoIs data and confirmed by the Registrar in its reply to the Center’s request the registrant of record of the disputed domain name is “David Woodsen /Privacy protection service - whoisproxy.ru”, which supports Complainant’s contention that Respondent is not commonly known by the disputed domain name. In addition, the Panel believes that there is no evidence of any use of, or any demonstrable preparation to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. While the Panel notes that Complainant in its Complaint does not provide any concrete evidence that the disputed domain name was used in a scam or fraudulent scheme to extract money from unsuspecting individuals looking for a job in OneSubsea LLC, the Panel also notes that there is no evidence of any use whatsoever of the disputed domain name. Further, Respondent did not reply to Complainant’s contentions. Moreover, on June 5, 2016 the Panel under its general powers pursuant to paragraph 10(d) of the Rules, visited the “www.archive.org” website and searched on the Wayback Machine for archived pages of the website at the disputed domain name. See WIPO Overview 2.0 , paragraph 4.5 . The Machine returned a message stating, “Page cannot be displayed due to robots.txt.” In the Panel`s view, this fact suggests that Respondent cannot show any bona fide past use of the disputed domain name. See WIPO Overview 2.0 , paragraph 3.10 (“Panels have found that, absent convincing justification in a given case for the employment of “robots.txt” or other similar circumvention mechanisms to prevent access to historical website content on a repository such as the Internet Archive (at “www.archive.org”), the use of such device may be considered as an attempt by the domain name registrant to block access by the panel to relevant evidence (for example, if robots.txt is implemented only after the registrant is put on notice of third party rights). In such a case, a panel may be entitled to assume that appropriately evidenced prima facie reasonable factual allegations made by a complainant as to the historical use of the website to which the domain name at issue resolves are true, and that, depending on those allegations, the use of mechanisms such as “robots.txt” in the particular case may be a relevant (though not necessarily dispositive) consideration for purposes of assessing bad faith.”) Complainant also contends that Respondent has acquired no corresponding trademark or service mark rights. In this respect, the Panel notes that there is no evidence to the contrary. Finally, Complainant contends that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain misleadingly to divert consumers or to tarnish Complainant’s trademark, but that Respondent is misleading consumers and tarnishing the name of the OneSubsea company. Given that there is no evidence of any use whatsoever of the disputed domain name, the Panel agrees that Policy paragraph 4(c)(iii) is inapplicable. In light of Complainant’s assertions, the lack of any evidence to the contrary, and since Respondent failed to provide any reply or any element in its own favor, the Panel concludes that Complainant has made out its case that Respondent lacks any rights or legitimate interests in the disputed domain name. C. Registered and Used in Bad Faith The Panel notes that the ONESUBSEA mark was registered on October 28, 2014, i.e . two years before the registration of the disputed domain name. The Panel also notes that the disputed domain name is a close imitation of Complainant’s mark. In particular, the addition in the disputed domain name of the term “company” indicates that at the time of registration Respondent knew of, and targeted, nothing other than the OneSubsea company, its ONESUBSEA mark and the goods and services covered by this mark. In the circumstances of this case, the Panel finds that the disputed domain name was registered in bad faith. Complainant contends that Respondent used the disputed domain name, which is confusingly similar to the ONESUBSEA mark, in a scheme consisting in falsely offering jobs in the OneSubsea company – co-owned by Complainant - to unsuspecting individuals, while trying to extract monies from them via “relocation fees”, and impersonating the OneSubsea company for that purpose. Although Respondent failed to contest these very precise and serious contentions of Complainant, the fact is that Complainant did not provide the Panel with any concrete evidence of such fraudulent behavior, such as printouts of the website at the disputed domain name or the email communications themselves. Accordingly, the Panel cannot conclude that Respondent behaved in such a manner on the basis of the case record. This, however, does not mean that Respondent did not act in bad faith for purposes of the Policy, since there is no evidence of any active use whatsoever of the disputed domain name, and instead there is evidence that Respondent, by using the “robot.txt” device, blocked the access to the contents of the website at the disputed domain name. See section 6B above. This behavior allows the Panel to conclude, as the panel of Telstra Corporation Limited v. Nuclear Marshmallows , WIPO Case No. D2000-0003 , that “taking into account all of the above, it is not possible to conceive of any plausible actual or contemplated active use of the domain name by the Respondent that would not be illegitimate”, i.e . in bad faith. The third element of the Policy, requiring registration and use in bad faith is thus met. 7. Decision For the foregoing reasons, in accordance with Policy paragraph 4(i) and Rules paragraph 15, orders that the disputed domain name <onesubseacompany.com> be cancelled. Roberto Bianchi Sole Panelist Date: June 6, 2016 1 “a panel may undertake limited factual research into matters of public record if it deems this necessary to reach the right decision. This may include visiting the website linked to the disputed domain name in order to obtain more information about the respondent and the use of the domain name, consulting a repository such as the Internet Archive (at www.archive.org) in order to obtain an indication of how a domain name may have been used in the relevant past, reviewing dictionaries or encyclopedias to determine any common meaning, or discretionary referencing of trademark online databases. A panel may also rely on personal knowledge. If a panel intends to rely on information from these or other sources outside the pleadings, especially where such information is not regarded as obvious, it will normally consider issuing a procedural order to the parties to give them an opportunity to comment. Alternatively or additionally, if the panel feels that it requires supplemental information to make a decision in a proceeding, it can issue a procedural order to the parties requesting the submission of such information”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition ("WIPO Overview 2.0") paragraph 4.5 .
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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