WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Lanxess Deutschland GmbH v. Cimpress Schweiz GmbH
Case No. D2018-0506
1. The Parties
The Complainant is Lanxess Deutschland GmbH of Cologne, Germany, represented by Wolpert Rechsanwälten, Germany.
The Respondent is Cimpress Schweiz GmbH of Zurich, Switzerland.
2. The Domain Name and Registrar
The disputed domain name <ianxass.com> is registered with Tucows Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 6, 2018. On March 6, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 6, 2018, 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 March 14, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 3, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 5, 2018.
The Center appointed Adam Taylor as the sole panelist in this matter on April 16, 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 develops, manufactures and markets chemical and plastics products under the name “Lanxess”.
The Complainant owns the following European Union (“EU”) trade marks for the term LANXESS:
- no. 3696581, filed March 5, 2004, registered June 27, 2005, in classes 1, 2, 4 and 17;
- no. 6596514, filed January 18, 2008, registered February 13, 2009, in classes 16, 18, 21, 24, 25, 28, 35, 37, 38, 41, 42, 43 and 45.
The disputed domain name was registered on February 11, 2018.
The disputed domain name does not resolve to a website.
On February 19, 2018 an email was sent in the name of a senior officer of the Complainant in the format “[firstname.lastname]@ianxass.com” to an employee of the Complainant, asking: “Are you available at your desk?”
5. Parties’ Contentions
A summary of the Complainant’s contentions is as follows:
The disputed domain name is confusingly similar to the Complainant’s trade mark.
It differs only by the substitution of the letter “i” for “l” and of “a” for “e”. The case of the letters is irrelevant. The disputed domain name and trade mark are visually and aurally highly similar. The disputed domain name can be considered as a misspelling of the trade mark.
The Respondent lacks rights or legitimate interests in the disputed domain name.
The disputed domain name does not resolve to a website. Therefore the Respondent has not been commonly known by the disputed domain name.
The Respondent has no trade marks rights in the term “ianxass”, at least within Germany or the EU.
The Respondent is using the disputed domain name to impersonate the Complainant.
The disputed domain name was registered and is being used in bad faith.
The Respondent sends emails to the Complainant’s staff from an email address at the disputed domain name, which gives the impression that the Respondent also works for the Complainant. The Respondent is attempting to deceive the Complainant’s staff.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established trade mark rights in the mark LANXESS by virtue of its registered trade marks.
Section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) explains that a domain name which consists of a common, obvious, or intentional misspelling of a trade mark is considered by panels to be confusingly similar to the relevant mark for purposes of the first element, stemming from the fact that the domain name contains sufficiently recognisable aspects of the relevant mark. Section 1.9 adds that, under the second and third elements, panels will normally find that employing a misspelling in this way signals an intention on the part of the respondent (typically corroborated by infringing website content) to confuse users seeking or expecting the complainant. Examples of such typos are said to include substitution of similar-appearing characters.
In this case, the letters “l” and “e” respectively have been substituted by the similar-appearing letters “i” and “a”. In the Panel’s view, this constitutes an intentional misspelling of the Complainant’s trade mark. The Complainant’s trade mark remains readily recognisable within the disputed domain name.
The Panel therefore finds that the Complainant has established the first element of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
As explained in section 2.1 of the WIPO Overview 3.0, the consensus view is that, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If not, the complainant is deemed to have satisfied the second element.
Here, the disputed domain name has been used in connection with an attempted scam. See further below. Plainly this is not a bona fide offering of goods or services under paragraph 4(c)(i) of the Policy. Nor do paragraphs 4(c)(ii) and (iii) of the Policy apply
The Panel concludes that the Respondent has no rights or legitimate interests in the disputed domain name and that the Complainant has therefore established the second element of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
As explained in section 4 above, the disputed domain name has been used to send an email impersonating the Complainant. While the precise purpose of the email is unclear, it was clearly part of an illicit scheme of some sort. Given the evidence of use of the disputed domain name for a fraudulent purpose, the Panel readily concludes that it was registered and is being used in bad faith by the Respondent.
The Panel therefore finds that the Complainant has established the third element of paragraph 4(a) 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 disputed domain name <ianxass.com> be transferred to the Complainant.
Date: April 30, 2018