Westmore · UDRP DecisionStatoil.sucks
The Panel ordered transfer of <statoil.sucks>. It found the domain confusingly similar to the Complainant’s registered STATOIL mark. Although the domain resolved to a purported criticism site, the Panel concluded on the balance of probabilities that the site was not created for genuine noncommercial criticism but was more likely intended to increase traffic to the Respondent’s other “.sucks” websites for commercial benefit. The Respondent filed no Response, failed to rebut the Complainant’s prima facie case, and was found to have registered and used the domain in bad faith.
The timeline behind statoil.sucks
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 statoil.sucks — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The decision illustrates that use of a trademark with the “.sucks” TLD can satisfy the first UDRP element while the legitimacy of the criticism use is examined under the second and third elements. A site’s criticism-oriented language does not by itself establish fair use where the surrounding structure, cross-linking, content authenticity concerns, prior similar conduct, and absence of a respondent explanation support a finding of ulterior commercial purpose.
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 Equinor ASA v. Redacted for Privacy, Privacy Hero Inc. / Pat Honey Salt, Honey Salt ltd Case No. D2021-0796 1. The Parties The Complainant is Equinor ASA, Norway, represented by Valea AB, Sweden. The Respondent is Redacted for Privacy, Privacy Hero Inc., Turks and Caicos Islands, United Kingdom / Pat Honey Salt, Honey Salt ltd, Turks and Caicos Islands, United Kingdom. 2. The Domain Name and Registrar The disputed domain name <statoil.sucks> is registered with Rebel Ltd (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 17, 2021. On March 17, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 22, 2021, 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 and contact information in the Complaint. The Center sent an email communication to the Complainant on March 24, 2021 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 March 24, 2021. 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 the Respondent of the Complaint, and the proceedings commenced on March 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 15, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 26, 2021. The Center appointed Adam Taylor as the sole panelist in this matter on May 3, 2021. 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 an international energy company. Since the 1970’s it traded under the name “Statoil”. In 2018, it changed its name to “Equinor”. The Complainant owns many trade marks for STATOIL including International Registration No. 730092, registered on March 7, 2000, in classes 1, 4, 17, 39, and 42. The disputed domain name was registered on October 15, 2020. As of January 29, 2021, the disputed domain name resolved to a website headed “Statoil Sucks. TELL THE WORLD!” and “Statoil Sucks Customer Reviews and Feedback”, with some negative content and a series of one-star reviews about the Complainant. The website included links to similar “sucks” websites relating to other brands. When visited by the Panel, the site included the following: “Everything.sucks is a non-profit organization and communications forum for social activism. This website allows users a voice to share their point of view online about what sucks in the world. We occasionally buy a dot sucks domain and point it at a specific page. We do this to bring awareness to our site and because, well, we love the dot sucks domain. If you ask us if we would sell the domain, our answer is simple. Absolutely not. We will give it to you. If the domain pointing at this page inspires passion in you and you want to build a fuller site around it, you can have it. That’s right, we will simply give it to you. We want to promote more sites on the Internet where people can share their voices…” 5. Parties’ Contentions A. Complainant The following is a summary of the Complainant’s contentions. The Complainant’s trade mark is still well-known in its field of business. The disputed domain name is confusingly similar to the Complainant’s trade mark, which it incorporates entirely. The Top-Level Domain (“TLD”) “.sucks” is insufficient to prevent confusing similarity. Furthermore, domain names consisting of a trade mark plus a negative term are considered confusingly similar to that trade mark. The Respondent lacks rights or legitimate interests in the disputed domain name. The Complainant has not licensed the Respondent to use its trade mark. The Respondent is not making any legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain. The Respondent is not generally known by the disputed domain name and has not acquired any trade mark or service mark rights in that name or mark. The disputed domain name resolves to a website containing misleading information about the Complainant and unverifiable fake quotes which appear to be automatically generated. The website at the disputed domain name is designed to give the impression that it is a legitimate “gripe site” whereas the Respondent’s real purpose is to take unfair advantage of the Complainant’s reputation for financial gain, by means of links to other similar sites of the Respondent which are designed to increase their traffic and thereby enhance the prices of the associated domain names if they are offered for sale. Furthermore, the Respondent is not itself exercising any free speech rights but is simply purporting to enable third parties to do so. Accordingly, the website is not being used for genuine and noncommercial criticism. Even if was, the disputed domain name still creates an impermissible risk of user confusion through impersonation as it is identical to the Complainant’s trade mark. The disputed domain name was registered and is being used in bad faith. The Respondent was well aware that the disputed domain name incorporated a well-known and distinctive trade mark in which the Respondent had no prior rights. The Respondent’s use of the disputed domain name to create a website designed to look like a genuine criticism site but whose real purpose was to take unfair commercial advantage of the Complainant’s trade mark constitutes registration and use in bad faith. The Respondent has engaged in a similar pattern of misconduct. The mere registration of the disputed domain name, which is identical or confusingly similar to the Complainant’s widely-known trade mark, by itself creates a presumption of bad faith. The website also includes the Complainant’s new Equinor logo, which is protected worldwide. The use of a privacy service is a further indication of bad faith. B. Respondent The Notification of Complaint delivery was signed for by a “SHAVANDA W”. The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Under the Policy, the Complainant is required to prove on the balance of probabilities that: - the disputed domain name is identical or confusingly similar to a trade mark in which the Complainant has rights; - the Respondent has no rights or legitimate interests in respect of the disputed domain name; and - the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar The Complainant has established rights in the mark STATOIL by virtue of its registered trade mark. The disputed domain name consists of the Complainant’s trade mark, followed by the Top-Level Domain (“TLD”) suffix “.sucks”. Domain name suffix TLDs are generally disregarded for the purposes of comparison with a trade mark under the first element. In any case, section 1.13 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) explains that a domain name consisting of a trade mark and a negative or pejorative term such as <[trademark]sucks.com> or <trademark.sucks> is considered confusingly similar to the complainant’s trade mark for the purpose of satisfying standing under the first element and that the merits of such cases, in particular as to any potential fair use, are typically decided under the second and third elements. This approach observed avoids gaming scenarios whereby appending a “sucks variation” would potentially see such cases fall outside the reach of the UDRP. For the above reasons, the Panel concludes that the disputed domain name is identical or confusingly similar to the Complainant’s trade mark. The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy. B. Rights or Legitimate Interests As explained in section 2.1 of WIPO Overview 3.0 , the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element. Here, the Complainant has not licensed or otherwise authorised the Respondent to use its trade mark. Paragraph 4(c) of the Policy gives examples of circumstances which, if proved, suffice to demonstrate that a respondent possesses rights or legitimate interests. As to paragraph 4(c)(iii) of the Policy, the Respondent claims to have used the disputed domain name for a website purporting to be critical of the Complainant. UDRP jurisprudence recognises that the use of a domain name for fair use such as noncommercial free speech would in principle support a respondent’s claim to a legitimate interest under the Policy. See section 2.6 of WIPO Overview 3.0 . As explained in section 2.6.3 of WIPO Overview 3.0 , where the domain name comprises the mark plus a derogatory term ( e.g ., <trademarksucks.tld>), panels tend to find that the respondent has a legitimate interest in using the trade mark as part of the domain name of a criticism site if such use is prima facie noncommercial, genuinely fair, and not misleading or false. However, the Panel notes the following: First, the Respondent has not filed a Response in this proceeding to contest the Complainant’s assertion that the Respondent has used its website as a pretext to take unfair advantage of the Complainant’s trade mark for financial gain. Second, various other previous UDRP cases have concluded that the Respondent’s use of similar websites for other “.sucks” domain names was a pretext to create the appearance of legitimacy and that the Respondent’s real purpose was more likely to have been a commercial one. See, e.g. , Sanofi v. Privacy Hero Inc. / Honey Salt ltd, pat honey salt , WIPO Case No. D2020-2836 , which the Respondent unsuccessfully defended. Amongst other things, the panel observed that in that case, in the absence of a plausible explanation from the Respondent, it was likely that the Respondent included links to its other “.sucks” websites in order to increase their traffic, and therefore their potential sale price. The Panel thinks it reasonable to make the same inference in this case, especially as the Respondent has not appeared in this case to argue otherwise. This conclusion is not altered by the fact that the website at the disputed domain name purportedly offers to “give” the disputed domain name to whoever wants it. Even if this offer is genuine, that does not of itself provide a justification for the Respondent’s inclusion of links to its other “.sucks” websites. Nor is the Panel convinced by the Respondent’s assertion that it generally links “dot sucks” domain names to other pages simply “to bring awareness to our site and because, well, we love the dot sucks domain”. This has all the hallmarks of a defensive statement – possibly in response to a previous UDRP case. Third, the Complainant asserts that the reviews on the website are fake and automatically generated. In the absence of any justification from the Respondent, and given the Respondent’s modus operandi , the Panel considers it reasonable infer that the reviews are either not genuine or were at least copied from third party websites without permission. This conclusion supports the impression that the website was not genuinely created for free speech but, rather, for an ulterior and illicit commercial purpose. Accordingly, for the above reasons, the Panel considers that, on the balance of probabilities, the disputed domain name was not registered for genuine and noncommercial criticism of the Complainant: Nor is there any evidence that paragraphs 4(c)(i) or (ii) of the Policy apply in the circumstances of this case. The Panel finds that the Complainant has established a prima facie case of lack of rights or legitimate interests and there is no rebuttal by the Respondent. The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy. C. Registered and Used in Bad Faith As explained above, the Panel has concluded that the Respondent registered and used the disputed domain name for a website that purported to be a legitimate criticism site but that, on the balance of probabilities, was more likely to have been designed to profit by taking unfair advantage of the Complainant’s trade mark by increasing traffic to its other websites. The Panel also notes that the Respondent has engaged in a pattern of such conduct. See, e.g. , Sanofi v. Privacy Hero Inc. / Honey Salt ltd, pat honey salt , supra . In these circumstances, the Panel considers that the Respondent has registered and is using the disputed domain name in bad faith and that the Complainant has established the third element of paragraph 4(a) 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 <statoil.sucks> be transferred to the Complainant. Adam Taylor Sole Panelist Date: May 17, 2021
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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