The domain PioneerNRC.com was expired at Network Solutions when it was thrown into the NameJet inventory of auctions.
Registered in 1997, the domain was being used since its registration by Pioneer Natural Resources USA, Inc. Due to a billing issue related to credit card and subsequent email notification failures to alert of the said billing issue, the domain renewal lapsed, went to auction, and was acquired by the Respondent. All attempts by the Complainant to stop the NameJet auction and renew the domain were futile.
In this case, the NameJet auction closed at $324 dollars. Source: NameBio. The WHOIS information displays the new registrant and Respondent’s information, an individual based in China.
The Complaint was pretty basic, however, consisting in part of this claim:
As of the date of this filing, Pioneer Natural Resources USA, Inc.’s external website www.pioneernrc.com is still up/populated with Pioneer Natural Resources USA, Inc. content. The respondent has made no legitimate changes for their purpose other than holding the domain for the sole purpose of cybersquatting.
At the time of the UDRP filing, the Respondent had apparently reconstructed the content of the Complainant’s former web site; the sole panelist at the Forum (NAF) claimed that there was not enough supporting evidence in order to deliver a positive outcome for the Complainant.
Final decision: Deny transfer of the domain PioneerNRC.com to the Complainant.
The domain transfer was denied.
Pioneer Natural Resources USA, Inc. v. FU, LEI
Claim Number: FA2303002034572
PARTIESComplainant is Pioneer Natural Resources USA, Inc. (“Complainant”), represented by Taylor Stevenson of Pioneer Natural Resources USA, Inc., US. Respondent is FU, LEI (“Respondent”), CN.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is , registered with Network Solutions, LLC.
PANEL
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Steven M. Levy, Esq. as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to Forum electronically on March 6, 2023; Forum received payment on March 6, 2023.
On March 8, 2023, Network Solutions, LLC confirmed by e-mail to Forum that the domain name is registered with Network Solutions, LLC and that Respondent is the current registrant of the names. Network Solutions, LLC has verified that Respondent is bound by the Network Solutions, LLC registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 13, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 3, 2023 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@pioneernrc.com. Also on March 13, 2023, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.
On April 10, 2023, pursuant to Complainant’s request to have the dispute decided by a single-member Panel, Forum appointed Steven M. Levy, Esq. as Panelist.
Having reviewed the communications records, the Administrative Panel (the “Panel”) finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) “to employ reasonably available means calculated to achieve actual notice to Respondent” through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, Forum’s Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Pioneer Natural Resources USA, Inc. owned and operated the domain with the Registrar “Network Solutions” from 8/5/1997 until 8/5/2022. Due to a billing issue related to credit card and subsequent email notification failures to alert of the said billing issue, the domain renewal lapsed, went to auction, and was acquired by the Respondent for the sole purpose of cybersquatting. When Pioneer realized that the domain renewal inadvertently lapsed on 01/09/2023, we immediately escalated the issue with Network Solutions and pursuant to further instructions, Pioneer is filing this dispute resolution to revert the ownership of the domain “pioneernrc.com” to the rightful owner – Pioneer Natural Resources USA, Inc. At no point was it Pioneer Natural Resources USA, Inc.’s intent to allow its ownership and operation of the pioneernrc.com domain to lapse.
B. Respondent
Respondent failed to submit a Response in this proceeding.
FINDINGS
Due to the very minimal and inadequate nature of the Complaint and the submitted evidence, the Panel is unable to find that Complainant has met its burden of proof with respect to any of the three elements of Policy ¶ 4(a). Nevertheless, the Complainant is denied without prejudice so that Complainant may consider refiling the matter in a more properly argued and well supported manner.
DISCUSSION
Paragraph 15(a) of the Rules instructs this Panel to “decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent’s failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant’s undisputed representations and evidence pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable and supported allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Identical and/or Confusingly Similar
Paragraph 4(a)(i) of the Policy requires complainants to demonstrate that the disputed “domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights”. Although presented in a single sentence, this is actually a two-part test. First, a complainant must prove the existence of trademark rights and second, that the disputed domain name is confusingly similar to such mark.
This first element of the Policy is considered a “standing” requirement. See, e.g., City of Pompano Beach v. Dolphin Ope, Inc, FA 1844961 (Forum June 26, 2019) (“this standing element of Policy ¶ 4(a)(i) concerns itself not with timelines but only with the binary question of whether or not a complainant possesses any rights in the trademark being asserted in the case.”), citing The Landmark Group v. DigiMedia.com, L.P., FA 285459 (Forum Aug. 6, 2004) (“under the first factor—which is a kind of threshold factor designed to determine whether Complainant has standing—the issue is only whether Complainant has trademark rights today and, if so, whether the domain name is identical or confusingly similar to that mark.”) While a complainant’s burden under Policy ¶ 4(a)(i) is not particularly high, nevertheless, there is at least a minimal standard and it has not been met in the present case.
Many complainants offer trademark registration certificates as proof of their rights in a claimed mark but it is well accepted that common law trademark rights may also support a claim under the Policy. In demonstrating such common law rights, sufficient supporting evidence must be presented. A mere textual assertion of rights in a complaint or substandard evidence will not meet a complainant’s burden of proof. Paragraph 1.3 of the frequently cited Overview of WIPO Panel Views on Selected UDRP Questions, (“WIPO Overview 3.0) (3d ed. 2017), titled “What does a complainant need to show to successfully assert unregistered or common law trademark rights?” offers the following guidelines:
To establish unregistered or common law trademark rights for purposes of the UDRP, the complainant must show that its mark has become a distinctive identifier which consumers associate with the complainant’s goods and/or services.
Relevant evidence demonstrating such acquired distinctiveness (also referred to as secondary meaning) includes a range of factors such as (i) the duration and nature of use of the mark, (ii) the amount of sales under the mark, (iii) the nature and extent of advertising using the mark, (iv) the degree of actual public (e.g., consumer, industry, media) recognition, and (v) consumer surveys.
While it is not required that all of the above-mentioned items be submitted to prove common law rights, there must be enough evidence for a Panel to base a conclusion that the asserted mark has gained distinctiveness and is most likely recognized by the relevant consuming public as the complainant’s trademark. By way of example, successful pleadings often contain such things as dated images of the following: complainant’s products, services, or facilities; archived screenshots of complainant’s website; advertisements and promotions; social media pages; news articles mentioning complainant; corporate sponsored events; complainant’s presence at trade shows; and any other material that shows the history, extent, and reach of complainant’s mark.
The Complaint here, signed by an in-house employee of Complainant, is very brief and particularly short on evidence. It does not speak to the public perception, reputation, or scope of Complainant’s claimed mark or provide sufficient evidence of common law trademark rights to meet the above-mentioned guidelines.
Complainant asserts that it “owned and operated the domain pioneernrc.com with the Registrar ‘Network Solutions’ from 8/5/1997 until 8/5/2022” and it offers a textual list of the dates of the domain name’s initial registration and each subsequent renewal. A textual list of evidence is not proof and does not substitute for the submission of evidence itself. No submission is made here to support Complainant’s claim to be the prior owner of the disputed domain name (e.g., screenshots of archived WHOIS records, screenshots of registrar pages or emails confirming registration and renewal of the domain name, etc.) The Panel is thus not in a position to confirm Complainant’s claim based on its written assertion alone. See, e.g., Dean & Simmons, Sàrl and Heintz Van Landewyck S.à.r.l. v. Domain Capital / Moniker Privacy Services, D2015-0080 (WIPO Mar. 27, 2015) (“Few things are more settled, or more fundamental under the Policy and Rules, than the requirement that material factual allegations must be proven, not simply alleged.”)
Further, the only evidence submitted by Complainant in this case consists of a single screenshot of the website displaying a Pioneer Natural Resources logo and links relating to oil, gas, and energy. The screenshot bears a 2022 copyright notice and Complainant’s name, stock ticker symbol, its postal address, and its telephone number. There is no indication, in this exhibit or the Complaint as to whether this screenshot was taken during the time that Complainant claims to have owned the disputed domain name or after it was acquired by Respondent. Below this screenshot Complainant has appended the text:
Non-Registered Marks at Issue:
Legal Name: Pioneer Natural Resources Company
Legal Name: Pioneer Natural Resources USA, Inc.
Domain Name: PioneerNRC.com
NYSE Ticker: PXD
Corporate Logo:
Following the last item above is a graphic of the same Pioneer Natural Resources logo which appears on the submitted website screenshot. No other evidence of Complainant’s claimed common law trademark is submitted.
Based on the very thin record in this case, the Panel is unable to find that Complainant has met its burden of proving that it owns trademark rights under Policy ¶ 4(a)(i).
Rights or Legitimate Interests
Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interest”).
The entirety of the Complaint under the heading of Policy ¶ 4(a)(ii) consists of the following text:
As of the date of this filing, Pioneer Natural Resources USA, Inc.’s external website www.pioneernrc.com is still up/populated with Pioneer Natural Resources USA, Inc. content. The respondent has made no legitimate changes for their purpose other than holding the domain for the sole purpose of cybersquatting.
The examples set out in Policy ¶ 4(c) are not exclusive and it is not required that any of them be cited in a complaint. However, Complainant’s assertion that Respondent has engaged in cybersquatting is unsupported and exceedingly vague leaving the Panel in the untenable position of trying to discern the nature of Complainant’s evidence, argument, and ground for asserting that Respondent has no rights or legitimate interests in the disputed domain name. This is made particularly difficult by the above-discussed failure to prove the existence of trademark rights, Complainant’s prior ownership of the disputed domain name, or its ownership of any of the content that appears in the single screenshot of the website that has been submitted into evidence.
Given the exceedingly limited evidence and argument provided by Complainant, the Panel is unable to find that it has met its burden of making a prima facie case under Policy ¶ 4(a)(ii).
Registration and Use in Bad Faith
As with Policy ¶ 4(a)(iii), the examples of bad faith registration and use set out in Policy ¶ 4(b) are not exclusive and it is not required that any of them be cited in a complaint.
The entirety of the Complaint under the heading of Policy ¶ 4(a)(iii) is identical to that set out in ¶ 4(a)(ii) and consists of the following text:
As of the date of this filing, Pioneer Natural Resources USA, Inc.’s external website www.pioneernrc.com is still up/populated with Pioneer Natural Resources USA, Inc. content. The respondent has made no legitimate changes for their purpose other than holding the domain for the sole purpose of cybersquatting.
Also as above, Complainant’s assertion is exceedingly vague and its evidence minimal to the point that it cannot be said to have made out its case or carried its burden of proof under Policy ¶ 4(a)(iii).
Summary
Due to the inadequate nature of the Complaint and the single item of submitted evidence, the Panel has found that the required burden of proof has not been met here. Nevertheless, as the Complaint appears to have been drafted and submitted by an in-house individual at Complainant’s company who may have very limited knowledge of the Policy, and taking into account the fact that Complainant is a publicly traded company whose shareholders and others may be misled or harmed if its website has indeed been compromised, the Panel has denied this case without prejudice thus allowing Complainant to consider refiling the case, perhaps by a professional who has knowledge of and experience with UDRP cases and standards.
DECISION
Having not established all three elements required under the ICANN Policy, the Panel concludes that relief shall be DENIED without prejudice.
Accordingly, it is Ordered that the domain name REMAIN WITH Respondent.
Steven M. Levy, Esq., Panelist
Dated: April 12, 2023
