WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

ARKEMA FRANCE v. Joe Kreg

Case No. D2018-2392

1. The Parties

Complainant is ARKEMA FRANCE of Colombes, France, represented by In Concreto, France.

Respondent is Joe Kreg of Instanbul, Turkey.

2. The Domain Name and Registrar

The disputed domain name <arkeema.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 19, 2018. On October 19, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 20, 2018, the Registrar transmitted by email to the Center its verification response confirming that 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 Respondent of the Complaint, and the proceedings commenced on October 25, 2018. In accordance with the Rules, paragraph 5, the due date for Response was November 14, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on November 16, 2018.

The Center appointed Jeffrey D. Steinhardt as sole panelist in this matter on November 26, 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

Complainant owns many registrations worldwide for its ARKEMA trademarks, including for example international trademark No. 847865 registered November 30, 2004 in classes 1, 2, 3, 4, 5, 16, 17, 37, 38, 39, 40, 41, 42, and 45 for various chemical and polymer products. Turkey is among the countries covered by this international trademark registration.

The disputed domain name was registered April 8, 2018. The disputed domain name does not route to an active webpage.

5. Parties’ Contentions

A. Complainant

Complainant alleges that its trademark and brand is used in connection with the company’s presence in 55 countries worldwide, and that it has also used the ARKEMA mark for domain name registrations from as early as 2001.

Summarizing its legal contentions, Complainant alleges that (1) the disputed domain name is nearly identical to Complainant’s trademarks, (2) Respondent has no rights or legitimate interests in the disputed domain name, and (3) the disputed domain name was registered and is being used in bad faith, all in violation of the Policy.

On the basis of the above, Complainant requests transfer of the disputed domain name.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

A. Notification of Proceedings

The Policy and the Rules establish procedures to give respondents notice of proceedings and a reasonable opportunity to respond (see, e.g., paragraph 2(a) of the Rules). The Center sent by courier and email to Respondent notification of these proceedings, using the contact information provided by the Registrar. The notifications were not deliverable at the physical address and email address provided.

The Panel is satisfied that by sending communications to the contacts verified by the Registrar, based on those provided by Respondent and listed in the WhoIs records, the Center has exercised care, fulfilling its responsibility under paragraph 2(a) of the Rules to employ all reasonably available means to serve actual notice of the Complaint upon Respondent.

B. Substantive Rules of Decision

The Panel renders its Decision on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;

(ii) 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.

Complainant must establish these elements even if Respondent does not submit a Response. E.g., The Vanguard Group, Inc. v. Lorna Kang, WIPO Case No. D2002-1064.

C. Identical or Confusingly Similar

The Panel agrees with Complainant that the disputed domain name is nearly identical and finds that the disputed domain name is confusingly similar to Complainant’s trademarks, as elaborated below.

UDRP panels generally disregard the domain name suffix in evaluating identity or confusing similarity. E.g., VAT Holding AG v. VAT.com, WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc., WIPO Case No. D2006-1315.

Disregarding the domain name suffix, the only distinction between Complainant’s ARKEMA mark and the term “Arkeema” in the disputed domain name is Respondent’s mere addition of the extra character “e.” The Panel agrees that this appears to be a classic instance of “typosquatting,” and finds that this small distinction is insufficient to avoid a finding of confusing similarity.

The Panel holds, therefore, that the Complaint fulfills the requirements of Policy paragraph 4(a)(i).

D. Rights or Legitimate Interests

The Panel also agrees that Complainant establishes that Respondent has no rights or legitimate interests in respect of the disputed domain name.

Paragraph 4(c) of the Policy contains a non‑exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in the use of a domain name. The list includes:

(1) the use of the domain name in connection with a bona fide offering of goods and services;
(2) being commonly known by the domain name; or
(3) the making of a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers.

Complainant must establish a prima facie case that Respondent lacks rights or legitimate interests. See e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455 (citing De Agostini S.p.A. v. Marco Cialone, WIPO Case No. DTV2002-0005). The absence of rights or legitimate interests is established if a prima facie case is established and Respondent does not rebut that prima facie case.

Complainant avers that Respondent is not affiliated with it, has no authorization to use Complainant’s trademarks, and that Respondent is not commonly known by the disputed domain name. The Panel accepts these undisputed allegations. Since the record reflects that the website is inactive and not used by Respondent to post any substantive content whatsoever, the Panel is inclined also to agree with Complainant that Respondent is not making a legitimate, noncommercial or fair use of the disputed domain name.

Complainant establishes a prima facie case. Refraining from submitting a response, Respondent has brought to the Panel’s attention no circumstances from which the Panel could infer that Respondent has rights or legitimate interests in respect of the disputed domain name.
Therefore, the Panel concludes that the second element of paragraph 4(a) of the Policy is established.

E. Registered and Used in Bad Faith

The Panel also concludes that Respondent has registered and is using the disputed domain name in bad faith, as elaborated below.

UDRP panels may draw inferences about bad faith registration and use in light of the circumstances, such as whether the trademarks in question are well known, whether there is no response to the complaint, whether a respondent is making active use of the disputed domain name, and whether there is no conceivable legitimate use for the disputed domain name. E.g., Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003.

It appears that Respondent opportunistically registered the disputed domain name based on a minor misspelling of the ARKEMA mark. The Panel does not hesitate to find that Respondent knew of Complainant’s ARKEMA mark when Respondent registered the disputed domain name, since the mark had been widely used (and legally protected in Turkey) well before registration of the disputed domain name. Cf. Intersections Inc. v. Privacy Ltd. Disclosed Agent for YOLAPT, Domain Admin / Whois Privacy Services Pty Ltd., WIPO Case No. D2010-0411.¹

The available evidence also confirms thatRespondent registered slightly modified versions of multiple third-party brands or trademarks that are not the central subject of this proceeding. Complainant found evidence that during a two and one-half month period in early 2018, Respondent registered the following additional domain names: <mitsubisihicorp.com> (January 22, 2018); <jsaccesories.net> (April 4, 2018) <meccamotos.com> (March 21, 2018); and <sctoois.com (April 6, 2018).The Panel finds that Whois records confirm the existence of those registrations.At least some of the trademarks underlying those domain name registrations are well known. Submitting no response to the Complaint, Respondent has not countered the Complaint’s allegations or addressed the question of whether Respondent had permission from the relevant rightholders to make these registrations, which are also misspellings of trademarks or brand names.

The nature of the brands and trademarks mimicked in these registrations and the lack of substantive content on the corresponding websites leads the Panel to infer that it is highly unlikely that Respondent had authorization by the third-party rightholders to make those registrations.

Typosquatting is nearly universally ruled by UDRP panels to constitute evidence of bad faith. E.g., Amazon. com, Inc. v. Steven Newman a/k/a Jill Wasserstein a/k/a Pluto Newman, WIPO Case No. D2006-0517 (“It is well settled under the Policy that the practice of typosquatting, in and of itself, constitutes bad faith registration.”), citing ESPN, Inc. v. XC2, WIPO Case No. D2005-0444. The Panel agrees that Respondent’s typosquatting in this case demonstrates bad faith.

Respondent’s apparent serial effort to engage in typosquatting to exploit the brands and marks of others adds weight to the evidence that the disputed domain name before the Panel in the present proceeding was registered in bad faith. Playboy Enterprises International, Inc. v. Tom Baert, WIPO Case No. D2007-0968; Verizon Trademark Services LLC v. Osman Khan, NutriGold Inc., WIPO Case No. D2015-1651.

Respondent’s failure to maintain accurate contact details in accordance with his agreement with the Registrar, the lack of substantive content on the website, and Respondent’s lack of a response to the Complaint are evidence of use in bad faith. E.g., Telstra Corporation Limited, supra; Ebay Inc. v. Ebay4sex.com and Tony Caranci, WIPO Case No. D2000-1632.

The Panel therefore concludes that the disputed domain name was registered and is being used in bad faith under paragraph 4(b)(iv) of the Policy.

7. Decision

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 <arkeema.com> be transferred to Complainant.

Jeffrey D. Steinhardt
Sole Panelist
Date: December 10, 2018

The Panel notes that the term “arkema” appears to be a coined term, which has no ordinary or generic meaning. Beyond its use as a brand and company name, the term does not appear to be in common use in any language that the Panel could identify, including French (the language of Complainant’s home country and company registration) and Turkish (the language of the country of Respondent’s registered address).