WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arkema France v. Domains by Proxy, LLC, DomainsByProxy.com / Ryan Watts
Case No. D2016-0817
1. The Parties
Complainant is Arkema France, of Colombes, France, represented by Fross Zelnick Lehrman & Zissu, PC, United States of America ("United States").
Respondent is Domains by Proxy, LLC, DomainsByProxy.com of Scottsdale, Arizona, United States / Ryan Watts of Portage, Michigan, United States.
2. The Domain Name and Registrar
The disputed domain name <arkemma.com> (the "Domain Name") is registered with GoDaddy.com, LLC (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on April 26, 2016. On April 26, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 26, 2016, the Registrar transmitted by email to the Center its verification response confirming that Respondent Ryan Watts 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 29, 2016. In accordance with the Rules, paragraph 5, the due date for Response was May 19, 2016. On May 4, 2016, Respondent submitted an informal communication. No formal Response was submitted.
The Center appointed Dinant T. L. Oosterbaan as the sole panelist in this matter on May 26, 2016. 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
Complainant is a French chemical company with offices in 40 countries and over 13,000 employees.
According to the evidence submitted by Complainant, Complainant has obtained multiple registrations for the trademark ARKEMA, including the trademarks ARKEMA registered with the United States Patent and Trademark Office ("USPTO") with the registration numbers 3082135 and 3082057, and a registration date of April 18, 2006.
The Domain Name <arkemma.com> was registered on March 7, 2016. The Domain Name does not resolve to an active website.
The trade mark registrations of Complainant were issued prior to the registration of the Domain Name.
5. Parties' Contentions
Complainant submits that the Domain Name is confusingly similar to its ARKEMA trademark as it contains the ARKEMA trademark in its entirety with the addition of the extra letter "M".
According to Complainant, Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent has no connection or affiliation with Complainant and has not received any license or consent to use the trademark of Complainant. According to Complainant, Respondent has made no actual use of the Domain Name. Complainant submits that Respondent has not legitimately registered and is not making a legitimate noncommercial or fair use of the Domain Name.
Complainant submits that Respondent has registered and is using the Domain Name in bad faith, in particular as Respondent registered the confusingly similar Domain Name without authorization.
Respondent did not formally reply to Complainant's contentions. However, in its email of May 4, 2016 Respondent indicated that it has no affiliation to the Domain Name.
6. Discussion and Findings
Paragraph 15(a) of the Rules instructs the Panel to "decide a complaint on the basis of the statements and documents submitted and 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 the complainant proves each of the following three elements to obtain an order that the disputed domain name should be transferred or cancelled:
(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 Panel will proceed to analyze whether the three elements of paragraph 4(a) of the Policy are satisfied in this proceeding.
As a preliminary matter the Panel mentions the following. On May 4, 2016 Ryan Watts against whom the Complaint was filed sent an email communication to the Center stating that he had no affiliation to any of the domain names mentioned, nor with any persons affiliated with the fraudulent activity presented here.
The Panel has reviewed the correspondence between the Center and this person against whom the Complaint was filed. It is possible that Respondent's name may have been used, wrongly, by another unknown person. It may also have been that the contact information provided during the registration was inaccurate but the Panel is unable to make any determination in this respect. The Panel does note that the registration of the Domain Name was done by using a WhoIs privacy service. Only after the Complaint was filed did the Registrar disclose the underlying registrant, Ryan Watts.
The Panel is satisfied that the person against whom the Complaint was filed has no interest in the Domain Name or what might become of it. In the circumstances, references to Respondent in this Decision (and the findings of the Panel set out hereafter) refer or have application to the true registrant of the Domain Name (the party also described in this decision as "Registrant"). This Decision is directed to and affects the Registrant of the Domain Name who may have wrongly used the name of another person. It is Registrant's rights and legitimate interests in the Domain Name and Registrant's good or bad faith acting with which this proceeding is concerned.
A. Identical or Confusingly Similar
Pursuant to paragraph 4(a)(i) of the Policy, Complainant must first of all establish rights in a trademark or service mark and secondly that the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights.
Complainant has established that it is the owner of trademark registrations for ARKEMA. The Panel notes that Complainant's registrations of its trademark predate the creation date of the Domain Name.
The Domain Name incorporates the entirety of the ARKEMA trademark as its distinctive element. Many UDRP panels have found that a domain name is confusingly similar to a complainant's trademark where the domain name incorporates the complainant's trademark in its entirety. The obvious misspelling in the Domain Name consisting of the addition of the letter "M", also referred to as typosquatting, is insufficient to avoid a finding of confusing similarity as the ARKEMA trademark remains the dominant component of the Domain Name.
The Panel finds that Complainant has proven that the Domain Name is confusingly similar to Complainant's ARKEMA trademark and paragraph 4(a)(i) of the Policy has been satisfied.
B. Rights or Legitimate Interests
In the opinion of the Panel, Complainant has made a prima facie case that Respondent lacks rights or legitimate interests in the Domain Name. This is particularly true as Respondent is not making a legitimate noncommercial or fair use of the Domain Name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark of Complainant. Based on the evidence provided by Complainant, there is no active website to which the Domain Name resolves. Respondent makes use of the value of the ARKEMA trademark and the likelihood of confusion with the trademark of Complainant, which cannot be considered a bona fide offering of goods or services nor a legitimate noncommercial or fair use of the Domain Name. Respondent is not commonly known by the Domain Name nor has it acquired trademark rights.
Under these circumstances, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
C. Registered and Used in Bad Faith
The Panel finds that the Domain Name has been registered and is being used in bad faith. The trademarks of Complainant have been existing for a long time. Respondent knew or should have known that the Domain Name included Complainant's ARKEMA trademark.
The Panel notes that there is currently no active website to which the Domain Name resolves. However, passive holding of a Domain Name does not prevent the Panel from finding registration and use in bad faith. The Panel further notes that Respondent undeveloped use of a website at the Domain Name which incorporates Complainant's trademark in its entirety indicates that Respondent possibly registered the Domain Name with the intention to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the trademark of Complainant as to the source, sponsorship, affiliation, or endorsement of its website or location or of a service on its website or location, as per paragraph 4(b)(iv) 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 <arkemma.com> be transferred to Complainant.
Dinant T. L. Oosterbaan
Date: May 31, 2016