WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arkema France v. Brian Van de Walt
Case No. D2014-0547
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 Brian Van de Walt of Amsterdam, Netherlands.
2. The Domain Name and Registrar
The disputed domain name <arkemagroups.com> is registered with Tucows Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 3, 2014. On April 4, 2014, the Center transmitted by email to Tucows Inc. a request for registrar verification in connection with the disputed domain name. On April 4, 2014, Tucows Inc. 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 April 8, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was April 28, 2014. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 29, 2014.
The Center appointed WiIliam A. Van Caenegem as the sole panelist in this matter on May 9, 2014. 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 has obtained registration for its trademark ARKEMA in multiple jurisdictions, inter alia in the United States (Reg. Nos. 3,082,135 and 3,082,057; Registration date April 18, 2006).
The disputed domain name was registered on September 16, 2013.
5. Parties' Contentions
The Complainant asserts that it has registered and used the trademark ARKEMA since its formation in 2004 in relation to its businesses of "High Performance Materials, Industrial Specialities, and Coating Solutions". It is active in over 40 countries and employs over 13,800 staff worldwide. The Complainant contends that its ARKEMA trademark has become famous and well-known by virtue of its promotional and advertising efforts in various media.
The Complainant asserts that the Respondent has used the email address associated with the registration of the disputed domain name to produce false invoices on imitation letterhead. The Complainant contends that by issuing such invoices the Respondent has sought to gain delivery of goods from suppliers who would seek payment from the Complainant for the said goods. The Complainant attaches certain supporting documents to the Complaint. A cease and desist letter from the Complainant went unanswered by the Respondent.
The Complainant contends that the disputed domain name is confusingly similar to its trademark ARKEMA. The incorporation of a trademark in its entirety is said to have amounted to confusing similarity in the eyes of many previous panels. Further, the Complainant uses the terms "Arkema Group" to refer to its worldwide conglomeration of businesses, and the Respondent is said to seek to take advantage of this by registering the disputed domain name. Third parties will be left with the impression that the disputed domain name is authorized by the Complainant, it is said. Absent any evidence to the contrary, the disputed domain name is thus confusingly similar to the ARKEMA trademark, according to the Complainant.
Further, the Complainant states that its registration of the ARKEMA trademark predates the registration of the disputed domain name. Hence the burden is on the Respondent to establish rights and legitimate interests in the disputed domain name. However, according to the Complainant, the Respondent cannot establish any rights or legitimate interests. The Complainant asserts that the Respondent has no connection or affiliation with Complainant and has not received any license or consent, express or implied, to use Complainant's trademark in domain names or in any other manner. According to the Complainant, the demonstrated intention of the Respondent was to obtain an email server address to perpetrate the attempted frauds referred to previously. This establishes neither a bona fide offering of goods or services nor a legitimate interest in the disputed domain name.
According to the Complainant, it is likely that an unsuspecting supplier would be willing to supply products on the basis of the Complainant's reputation and would not realize that it was not communicating with an authorized officer of the Complainant. The Complainant contends that registration and non-use alone is in any case sufficient to establish absence of any rights or legitimate interests in a disputed domain name. In this case the disputed domain name resolves to a parking site only.
The fact that the ARKEMA trademark is well-known in the materials and coatings industries, combined with the fact that the Respondent has attempted to impersonate officers of the Complainant, mean it is inconceivable that the Respondent was not aware of the Complainant's trademark when the disputed domain name was registered. The mere fact of registration of the confusingly similar domain name amounts to evidence of bad faith, since no authorization from the Complainant was obtained. The Complainant also asserts that the attempted impersonation of the Complainant's officers amounts to opportunistic bad faith, as does the perpetrating of a fraud on unsuspecting equipment suppliers. In conclusion, the Complainant asserts that this matter presents a classic example of bad faith under the Policy, as the registration of the disputed domain name was solely for the purpose of trading upon the Complainant's rights and reputation.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name is not identical to the Complainant's trademark ARKEMA. However, it incorporates that trademark in its entirety as its first and most prominent part. The Complainant's trademark is highly distinctive and in no way generic, nor descriptive of the services and products it supplies. The addition of the generic term "group" does not serve to distinguish the disputed domain name from the Complainant's trademark and business name. In fact, the term "group" is consistent with the international and varied activities and companies of the Complainant, and tends to reinforce the impression of some legitimate connection or authorization by the Complainant. Such a connection does not in fact exist, and therefore the disputed domain name's similarity to the Complainant's ARKEMA trademark creates a confusing and false impression.
The Panel therefore holds that the disputed domain name is confusingly similar to the Complainant's trademark ARKEMA.
B. Rights or Legitimate Interests
The Respondent is not known by the term ARKEMA, nor is any evidence of any other legitimate connection with that term, trademark or business name before the Panel. The Complainant has put material before the Panel that is consistent with the Respondent making a dishonest use of the disputed domain name, that is, to obtain an email address for the purpose of generating false orders for supplies. This material is entirely inconsistent with the acquisition of rights or legitimate interests in the disputed domain name. The Complainant has not authorized the Respondent to make any use of its trademark ARKEMA in any form, including incorporating it in the disputed domain name and registering the latter. The Respondent has not filed any Response to the Complaint and the material therein contained as put before the Panel by the Complainant.
Therefore the Panel holds that the Respondent has no rights or legitimate interests in the disputed domain name.
C. Registered and Used in Bad Faith
The Complainant has used the ARKEMA trademark since its inception in 2004. The Complainant is a major corporation with business in many countries and a large number of employees, and has put ample evidence of use of the trademark ARKEMA in relation to those businesses before the Panel. In that light alone it is inconceivable that the disputed domain name incorporating the Complainant's trademark in its entirety could have been registered without prior knowledge of the Complainant's rights. This conclusion is further reinforced by the addition in the disputed domain name of the term "group" which is consistent with knowledge of the multifarious and international structure of the Complainant's enterprises. Further, the Complainant has put before the Panel material that is consistent with the Respondent having full knowledge of the Complainant and its goodwill in the mark ARKEMA. This material consists of apparently tricked-up letters incorporating the Complainant's trademark and other details consistent with full knowledge of the Complainant's business activities. The Respondent has not filed a Response or answered the Complainant's cease and desist letter in this regard.
Therefore the Panel holds that the disputed domain name was registered and used in bad faith.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <arkemagroups.com> be transferred to the Complainant.
WiIliam A. Van Caenegem
Date: May 21, 2014