WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lanxess Deutschland GmbH v. Name Redacted
Case No. D2017-2485
1. The Parties
The Complainant is Lanxess Deutschland GmbH of Cologne, Germany, represented by Wolpert Rechsanwälte, Germany.
The Respondent is Name Redacted.1
2. The Domain Name and Registrar
The disputed domain name <lanxss.com> is registered with 1&1 Internet SE (the "Registrar").
3. Procedural History
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 December 19, 2017, 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 27, 2017. In accordance with the Rules, paragraph 5, the due date for Response was January 16, 2018. On December 30, 2017, the Center received an email communication from an individual asserting that the domain name had been registered using that person's contact details without authorization. The Center emailed the Parties on January 2, 2018, notifying them of the Respondent identity issue.
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.
4. Factual Background
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 February 13, 2009).
The disputed domain name was registered on November 2, 2017. The Complainant provided a screenshot, from an unspecified date, showing that the disputed domain name did not resolve to an active webpage. As of the date of this decision, the disputed domain name does not resolve to any 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".
5. Parties' Contentions
The Complainant contends that the disputed domain name is confusingly similar to its LANXESS trademark because: (i) the string that precedes the ".com" generic Top-Level Domain ("gTLD") identifier, "lanxss", differs from the trademark only by the absence of the letter "e" between the "x" and "s" of the trademark; (ii) the disputed domain name is visually and aurally highly similar to the Complainant's trademark; and (iii) the string "lanxss" can be 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 "lanxss" 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.
A communication was received from the individual named in the WhoIs data as the registrant of the disputed domain name, stating that: (i) they were not aware of, and had not registered, the disputed domain name; (ii) while the registrant contact's name and address matched their own (albeit with some detail missing), they did not have control over the registrant contact's email address; and (iii) the registration of the disputed domain name had been made fraudulently in their name. No person claiming to be the registrant of the disputed domain name filed a response to the Complaint.
6. Discussion and Findings
A. Identical or Confusingly Similar
The disputed domain name incorporates almost the whole of the Complainant's registered word trademark LANXESS, with the omission of the letter "e" between the letters "x" and "s". Visually and aurally, the disputed domain name is virtually identical to the Complainant's LANXESS trademark. The Panel concludes that the omission of the letter "e" 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.
B. Rights or Legitimate Interests
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. 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.
C. Registered and Used in Bad Faith
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, 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 <lanxss.com> be transferred to the Complainant.
Andrew F. Christie
Date: February 13, 2018
1 The Panel has decided that no purpose can be served by including the named Respondent in this decision, and has therefore redacted the Respondent's name from the caption and body of this decision. However, the Panel has attached Annex 1 to this Decision, which instructs the Registrar regarding transfer of the disputed domain name, and includes the name of the Respondent. The Panel has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding. However, the Panel has further directed the Center, pursuant to paragraph 4(j) of the Policy and paragraph 16(b) of the Rules, that Annex 1 to this Decision shall not be published due to exceptional circumstances. See Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted, WIPO Case No. D2009-1788.