WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arkema France v. Whois Privacy Protection Service, Inc. / Amanda Bishop
Case No. D2012-2034
1. The Parties
The Complainant is Arkema France, of Colombes, France, represented by Fross Zelnick Lehrman & Zissu, PC, United States of America.
The Respondent is Whois Privacy Protection Service, Inc., of Bellevue, Washington, United States of America and Amanda Bishop, of Louisville, Kentucky, United States of America.
2. The Domain Name and Registrar
The disputed domain name <arkemaincs.com> (the “Domain Name”) is registered with eNom (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the ”Center”) on October 12, 2012. On October 15, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On October 15, 2012, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 19, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was November 8, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 9, 2012. Notwithstanding the above, due to an administrative oversight, it appears that the document entitled “Notification of Complaint and Commencement of Administrative Proceeding” and the Complaint (including annexes) were not copied to the email address […]@enom.com specified as administrative and technical contact for the Domain Name. Thus, in view of the above and in the interests of due process, the Center send an e-mail communication on November 9, 2012 granting the Respondent with an additional five (5) days from the date of such communication in order to indicate to the Center by return email whether it intended to participate in these proceedings or otherwise. The new due date for Response was November 14, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 15, 2012.
The Center appointed Mr. Nicholas Smith as the sole panelist in this matter on November 23, 2012. 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 a French industrial company. The Complainant was founded in 2004 and now has offices in 40 countries, employing over 13,800 employees. The Complainant operates 80 industrial facilities in Europe, North America and Asia and has sales subsidiaries in every region of the world. The Complainant makes and sells a wide variety of products including fluorochemicals, technical polymers, thiochemicals, functional additives, industrial coatings, acrylics, hydrogen peroxide, organic peroxides and molecular sieves.
The Complainant has held trade mark registrations for the word mark ARKEMA (the “ARKEMA Mark”) since at least 2005, including, since April 18, 2006, a registration of the ARKEMA Mark in the United States, the location of the Respondent. The Complainant also maintains an official website at “www.arkema.com”.
The Domain Name <arkemaincs.com> was registered on September 16, 2012. The Domain Name does not, and to the best of the Complainant’s knowledge, has never redirected to an active website. The Domain Name has been used as part of an e-mail address, […]@arkemaincs.com, which is the contact address for a series of fraudulent job postings posted online in September 2012.
The Respondent, Amanda Bishop, is an individual based in Kentucky. Upon receiving a cease and desist letter from the Complainant’s counsel, she contacted the Complainant and has indicated that she is a victim of identity theft and had no knowledge that her name was used to registered the Domain Name. She has filed reports about her identity theft with the Internet Crime Complaint Center, a partnership between the US Federal Bureau of Investigation and the National White Collar Crime Centre.
5. Parties’ Contentions
The Complainant makes the following contentions:
(i) that the Domain Name is identical or confusingly similar to the Complainant’s ARKEMA Mark;
(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and
(iii) that the Domain Name has been registered and is being used in bad faith.
The Complainant is the owner of the ARKEMA Mark. It owns a trade mark registration for the ARKEMA Mark in the United States, the location of the purported Respondent.
The Domain Name consists of the ARKEMA Mark in its entirety with the addition of the suffix “incs”. The suffix “incs” does not distinguish the Domain Name from the ARKEMA Mark “incs” is the plural of the common abbreviation for “Incorporated”. As such the use of the “incs” suffix with the ARKEMA trademark in the Domain Name was meant to further mislead Internet users to believe that the Domain Name is associated with the Complainant. See Cadbury Limited v. Marketing Total S.A., WIPO Case No. D2007-0854.
The Respondent has no rights or legitimate interests in the Domain Name. The Respondent does not hold a trade mark for “ARKEMA” or any similar trade mark. The Respondent is not an authorised user of the ARKEMA Mark nor is the Respondent authorised or affiliated with the Complainant. Rather the Respondent appears to use the Domain Name for a job fraud scam, in connection with the sending of fraudulent e-mail messages purportedly on behalf of the Complainant to prospective employees. Such use does not give rise to rights or legitimate interests.
The Domain Name was registered and is being used in bad faith. The Respondent registered and has used the Domain Name to impersonate the Complainant and purport to offer jobs at three non-existent Arkema facilities in the United States. This use of the Domain Name, as well as the fame of the ARKEMA Mark indicates that the Respondent was clearly aware of the Complainant’s rights in the ARKEMA Mark at the time of registration. The Respondent has registered and used the Domain Name in bad faith by registering the Domain Name while being aware of the Complainant’s rights and then using the Domain Name to perpetuate a fraud.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
To prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark.
The Complainant is the owner of the ARKEMA Mark, having registrations for ARKEMA as a trade mark in the United States, as well as other locations around the world.
The Domain Name consists of the ARKEMA Mark and the suffix “incs”. The effect of the addition of “incs”, short for incorporated, suggest that the Domain Name is a site connected the Complainant’s business, see Wipro Limited and Wipro Trademarks Holding Limited v. Globallink.com, Ltd. d/b/a Global Online, WIPO Case No. D2000-0656 which found the domain names <wiproltd.com>, <wiprolimited.com> and <wiprocorporation.com> confusingly similar to the WIPRO trademark. The Panel finds that the Domain Name is confusingly similar to the Complainant’s ARKEMA Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate Interests
To succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
“Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(i) before any notice to you of the dispute, your use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) you (as an individual, business, or other organization) have been commonly known by the domain name, even if you have acquired no trademark or service mark rights; or
(iii) you are making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.” (Policy, paragraph 4(c))”.
The Respondent is not affiliated with the Complainant in any way. It has not been authorised by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the ARKEMA Mark or a mark similar to the ARKEMA Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a legitimate noncommercial use.
The named Respondent, Amanda Bishop, is not the entity in control of the Domain Name and appears to have been the victim of identity theft. The (unidentified) entity that has registered the Domain Name has used the Domain Name as part of a job fraud scam. The entity that has registered the Domain Name, masquerading as the Complainant, posted at least three fraudulent job listings at Indeed.com, a website for posting employment opportunities. The Indeed.com job listings were posted without the knowledge or consent of the Complainant’s Human Resources department. These listings advertised positions at “Arkema – Charleston, SC,” “Arkema – San Antonio, TX,” and “Arkema – Lexington-Fayette, KY” none of which are locations in which the Complainant has offices. The e-mail address for these listings was […]@arkemaincs.com. This type of use does not constitute a bona fide offering of goods or services.
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had an opportunity to rebut the presumption that it lacks rights or legitimate interests but has chosen not to do so. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
For the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of the Domain Name in bad faith:
(i) circumstances indicating that the Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to the Complainant who is the owner of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the Domain Name; or
(ii) the Respondent has registered the Domain Name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the 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 Respondent’s website or location or of a product or service on the Respondent’s website or location.
The Panel finds that it is likely that the Respondent was aware of the Complainant and its reputation in the ARKEMA Mark at the time the Domain Name was registered. The fact that, within a week of its registration the Domain Name was used in connection with a series of fake job advertisements for positions with the Complainant is a clear indication that the Respondent was aware of the Complainant at the time the Domain Name was registered.
The registration of the Domain Name in awareness of the Complainant’s ARKEMA Mark and in the absence of rights or legitimate interests amounts to registration in bad faith.
The list of circumstances in paragraph 4(b) in which bad faith can be found is non-exhaustive, see TV Globo Ltda. v. Radio Morena, WIPO Case No. D2000-0245. In the present case, the Respondent has not used the Domain Name for an active website. Rather it has used the Domain Name to create an e-mail address, […]@arkemaincs.com, which it has used as a contact address for a series of fake job advertisements in which the Respondent passes itself off as the Complainant and purports to offer employment with the Complainant. The Respondent is using the Domain Name to attract, for commercial gain, Internet users by creating a likelihood of confusion with the Complainant. Such use is clearly bad faith use of the Domain Name.
Accordingly, the Panel finds that the Respondent has registered and used the Domain Name in bad faith under paragraph 4(a)(iii) of the Policy.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <arkemaincs.com> be transferred to the Complainant.
Dated: November 26, 2012