The Complainant is Lanxess Deutschland GmbH of Cologne, Germany, represented by Wolpert Rechsanwälte, Germany.
The Respondent is WhoisGuard Protected, WhoisGuard Inc. of Panama City, Panama / Oko Kytr of Kano, Ukraine.
The disputed domain name <lansxess.com> is registered with NameCheap, Inc. (the "Registrar").
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on December 15, 2017. On December 15, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same date, 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 December 20, 2017, 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 December 22, 2017.
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 December 28, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 17, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 18, 2018.
The Center appointed Andrew F. Christie as the sole panelist in this matter on January 30, 2018. 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.
The Complainant's core business is the development, manufacturing and marketing of chemical intermediates, additives, specialty chemicals and plastics. According to its website, the Complainant had sales in 2016 of EUR 7.7 billion and employs about 19,200 people in 25 countries.
The Complainant is the owner of two European Union trademark registrations for the word LANXESS (No. 3696581 registered June 27, 2005, and No. 6596514 registered from February 13, 2009).
The disputed domain name was registered on November 3, 2017. The Complainant has provided a screenshot, from an unspecified date, showing that the disputed domain name resolved to a page stating "Seite wurde nicht gefunden", translated in the Complaint as "page not found". As at the date of this decision, the disputed domain name does not resolve to a webpage. The Complainant also provided copies of email communications dated in November 2017, purporting to be sent by an employee of a subsidiary of the Complainant, using the disputed domain name as part of the email address. These communications requested the recipient to make payment to "our new bank account as we have not yet resolved issues with our old bank account".
The Complainant contends that the disputed domain name is identical or confusingly similar to its LANXESS trademark because: (i) the string that precedes the ".com" generic Top-Level Domain ("gTLD") identifier, "lansxess", only differs by inserting the letter "s" between the "n" and the "x" of the trademark; (ii) the disputed domain name is visually and aurally highly similar to the Complainant's trademark; and (iii) the string "lansxess" can by perceived as a misspelling of the Complainant's trademark.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name because: (i) the disputed domain name does not resolve to an active website and so the Respondent cannot be said to be commonly known by the disputed domain name; (ii) the Respondent has no trademark rights regarding "lansxess" within Germany or the European Union; and (iii) the Respondent uses the disputed domain name as part of an email address, so as to appear to be the Complainant.
The Complainant contends that the disputed domain name was registered and is being used in bad faith because: (i) the Respondent claims to be the Complainant or wants to give the impression that it is the Complainant; (ii) the Respondent sends emails using the name of the Complainant, mixed with the disputed domain name, in which it asks the recipient to make further payment to "Lanxess" via a new bank account when, in fact, the Complainant has not changed its bank account; and (iii) the Respondent intentionally tries to achieve a commercial gain by creating a likelihood of confusion with the Complainant's trademark, and by inducing the Complainant's customers to transfer money to the bank account of the Respondent.
The Respondent did not reply to the Complainant's contentions.
The disputed domain name incorporates the whole of the Complainant's registered word trademark LANXESS, with the addition of the letter "s" between the letters "n" and "x". Visually and aurally, the disputed domain name is virtually identical to the Complainant's LANXESS trademark. The Panel concludes that the addition of the letter "s" does not sufficiently lessen the inevitable similarity that exists between the disputed domain name and the Complainant's LANXESS trademark. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights.
The Respondent is not a licensee of, or otherwise affiliated with, the Complainant, and has not been authorized by the Complainant to use its LANXESS trademark. The Respondent has not provided any evidence that it has been commonly known by, or has made a bona fide use of, the disputed domain name, or that it has, for any other reason, rights or legitimate interests in the disputed domain name. The evidence provided by the Complainant shows that the disputed domain name does not resolve to any website, and that the Respondent does not have any trademark rights regarding "lansxess". According to the present record, therefore, the disputed domain name is not being used in connection with a bona fide offering of goods or services, or for a legitimate noncommercial or fair use. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
The disputed domain name was registered many years after the Complainant first registered its LANXESS trademark. The evidence on the record provided by the Complainant with respect to its use of its LANXESS trademark, combined with the absence of any evidence provided by the Respondent to the contrary, is sufficient to satisfy the Panel that, at the time of registration of the disputed domain name, the Respondent knew of the Complainant's trademark and knew that it had no rights or legitimate interests in the disputed domain name. Furthermore, the evidence on the record provided by the Complainant with respect to the Respondent's use of the disputed domain name in sending emails purporting to be on behalf of the Complainant, but using the disputed domain name as part of the email address and requesting payment to a bank account that does not belong to the Complainant, indicates that the Respondent has used the disputed domain name for commercial gain by creating confusion in the minds of the public as to an association between the email address and the Complainant. Accordingly, the Panel finds that the disputed domain name has been registered and is being used in bad faith.
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 <lansxess.com> be transferred to the Complainant.
Andrew F. Christie
Sole Panelist
Date: February 13, 2018