The Complainant is LANXESS Deutschland GmbH, Germany, represented by Wolpert Rechtsanwälte, Germany.
The Respondent is Domain Administrator, See PrivacyGuardian.org, United States of America “United States” / Jeffrey A Davis, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 7, 2020. On January 7, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On January 7, 2020, 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 January 10, 2020, 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 amendment to the Complaint on January 13, 2020. 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 the Respondent of the Complaint, and the proceedings commenced on January 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 5, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 6, 2020. The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on February 14, 2020. 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 develops, manufactures and markets chemical products. It is the owner of the following trademarks (Annexes 4 and 5 to the Complaint): - European Union Trademark Registration No. 003696581 for the word mark LANXESS, in classes 1, 2, 4 and 17, registered on June 27, 2005; and - European Union Trademark Registration No. 006596514 for the word mark LANXESS, in classes 16, 18, 21, 24, 25, 28, 35, 37, 38, 41, 42, 43 and 45, registered on February 13, 2009. The disputed domain name The Complainant, asserts that its core business is the development, manufacturing and marketing of chemical intermediates, additives, specialty chemicals and plastics. The Complainant further asserts that the disputed domain name is confusingly similar to its LANXESS trademark and tradename, being the addition of another letter “e” a misspelling thereof. As to the absence of rights or legitimate interests, the Complainant argues that the Respondent: (i.) has not been commonly known by the disputed domain name; (ii.) has no trademark rights over “Lanxeess” (Annex 7 to the Complaint); (iii). has used the disputed domain name to impersonate the Complainant. As to bad faith registration and use of the disputed domain name, the Complainant asserts that the Respondent intentionally registered the disputed domain name so as to falsely impersonate the Complainant by way of sending emails to the Complainant’s customers regarding “new updated bank account” and false payment instructions passing off as the Complainant (Annexes 8, 9 and 10 to the Complaint), and also using the name of one of the Complainant’s employees, which demonstrates the Respondent is intentionally misleading and confusing the public into believing that it is associated or affiliated with the Complainant. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy sets forth the following three requirements, which have to be met for this Panel to order the transfer of the disputed domain name: (i) the disputed domain name is identical or confusingly similar to a trademark 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 and is being used in bad faith. The Complainant must prove in this administrative proceeding that each of the aforementioned three elements is present so as to have the disputed domain name transferred, according to the Policy. A. Identical or Confusingly Similar The Complainant has established rights in the LANXESS trademark. The disputed domain name Therefore, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trademark. The first element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a non‑exclusive list of circumstances that may indicate a respondent’s rights to or legitimate interests in a domain name. These circumstances are: (i) before any notice of the dispute, the 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; or (ii) the Respondent (as an individual, business, or other organization) has been commonly known by the disputed domain name, even if it has not acquired trademark or service mark rights; or (iii) the Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. In that sense, there appears not to exist a commercial link between the Respondent and the Complainant nor any indication that the Complainant has given its consent to the Respondent to use and/or refer to the its trademark. Also, the absence of any trademarks registered by the Respondent corresponding to the disputed domain name, or any possible link between the Respondent and the disputed domain name that could be inferred from the details known of the Respondent or the webpage relating to the disputed domain name, corroborates the absence of rights or legitimate interests (Annexes 6 and 7 to the Complaint). According to the evidence submitted (Annexes 8, 9 and 10 to the Complaint), the Respondent has used the disputed domain name to intentionally mislead the Complainant’s costumers by sending emails regarding “new updated bank account” and false payment instructions passing off as the Complainant (Annexes 8, 9 and 10 to the Complaint), and also using the name of one of the Complainant’s employees and reproducing the Complainant’s logo in false invoices, which cannot be considered as a bona fide offering of goods or services under the Policy. The Panel finds that the Respondent does not have rights or legitimate interests with respect to the disputed domain name. C. Registered and Used in Bad Faith The Policy indicates in paragraph 4(b)(iv) that bad faith registration and use can be found in respect of a disputed domain name, where, by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on the website or location. In this case, both the registration and use of the disputed domain name in bad faith can be found in view of the use of the disputed domain name seeking to impersonate the Complainant for fraudulent purposes, as seen above. Other factors that corroborate the Panel’s finding of bad faith of the Respondent are: a. the reproduction of the Complainant’s logo in the false invoices attached to emails sent using the the disputed domain name; b. the use of the name of one of the Complainant’s employees in the fraudulent messages; c. the absence of a formal Response by the Respondent; and d. the Respondent appears to provide a false address that the Written Notice could not be delivered by courier to. For the reasons above, the Respondent’s conduct has to be considered, in this Panel’s view, as bad faith registration and use of the disputed domain name pursuant to paragraph 4(b)(iv) 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, Wilson Pinheiro Jabur
Sole Panelist
Date: February 28, 2020
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