WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arkema France v. Antonietta LoRusso
Case No. D2019-0417
1. The Parties
The Complainant is Arkema France of Colombes, France, represented by Fross Zelnick Lehrman & Zissu, PC, United States of America (“United States”).
The Respondent is Antonietta LoRusso of Raleigh, North Carolina, United States.
2. The Domain Name(s) and Registrar(s)
The disputed domain name <akemaincs.com> (the “Domain Name”) is registered with Wild West Domains, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 21, 2019. On February 22, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 22, 2019, 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 February 26, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 18, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 21, 2019.
The Center appointed Willem J. H. Leppink as the sole panelist in this matter on April 8, 2019. 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 is a French company, formed in 2004, which operates 80 industrial facilities in Europe, North America and Asia and has sales subsidiaries in every region of the world.
The Complainant owns several trademarks for ARKEMA, including the United States trademark ARKEMA (word mark) number 3082057, registered on April 18, 2006 (these trademarks are hereinafter referred to as the “Trademark”).
The Complainant is the owner of several domain names incorporating the Trademark, including <arkema.com>.
The Domain Name was registered on November 6, 2018.
The Domain Name resolves to a parked page with pay-per-click links that are unrelated to the Complainant and/or its business (the “Website”).
5. Parties’ Contentions
The following is a summary of the Complainant’s contentions.
The Domain Name is confusingly similar to the Trademark. The Domain Name consists of the Trademark, minus the letter “r”, plus the descriptive term “incs” and the generic “.com” top level extension.
The Respondent has no legitimate interest in or rights to the Domain Name. The Respondent is using the Domain Name in connection with an email sever used to place orders in name of the Complainant, and at Complainant’s expense. In addition, the Respondent has not made actual use of the Domain Name in connection with an active website.
The Respondent registered and used the Domain Name in bad faith by impersonating (one of the employees) of the Respondent. Therefore, the Respondent was aware of the Complainant and its Trademark. Furthermore, the Complainant referred to case Arkema France v. Antonietta LoRusso NA, VirtualOffice, WIPO Case No. D2018-0982, in which the Respondent was also involved with a domain name including the Trademark, which confirms that the Respondent was aware of the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Pursuant to paragraph 4(a) of the Policy, the Complainant must prove each of the following three elements:
(i) the 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 Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant must demonstrate that it has rights in a trademark or service mark and, if so, the domain name must be shown to be identical or confusingly similar to that mark.
The Complainant has shown that it has rights in the Trademark.
As set out in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), the first element functions primarily as standing requirement. The threshold test for confusing similarity between the Domain Name and the Trademark involves a relatively straightforward comparison.
In light of the foregoing, the Panel finds that the Domain Name is confusingly similar to the Trademark. The Domain Name consists of the elements “akema” and “incs”. The element “akema” technically includes a misspelling of the Trademark, since it does not include the letter “r”. Even while the element “akema” does not include the Trademark in its entirety, this intentional typo obviously does not lead to the conclusion that the Domain Name lacks sufficiently recognizable aspects of the Trademark.
Further, the addition of the element “incs” does not prevent a finding of confusing similarity. It is likely that the descriptive element “incs” is an abbreviation for the plural of “incorporated”.
In addition, with regard to the suffix “.com” (which indicates that the Domain Name is registered in the “.com” generic Top-Level Domain “gTLD”), as it was established in many previous UDRP decisions (see A.P. Møller v. Web Society, WIPO Case No. D2000-0135; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429; Arab Bank for Investment And Foreign Trade (ARBIFT) v. Mr. Kenn Wagenheim / email@example.com, WIPO Case No. D2000-1400; Delikomat Betriebsverpflegung Gesellschaft m.b.H. v. Alexander Lehner, WIPO Case No. D2001-1447; and Crédit Industriel et Commercial S.A v. Name Privacy, WIPO Case No. D2005-0457), it does not generally affect the analysis under the first element of the Policy for the purpose of determining whether a domain name is identical or confusingly similar; indeed, the suffix is a necessary component of a domain name and does not give any distinctiveness.
For all the foregoing reasons, the Panel is satisfied that the first element of the Policy is met.
B. Rights or Legitimate Interests
The Respondent did not provide a Response to the Complainant’s contentions. For that reason, the Panel has carefully considered the factual allegations that have been made by the Complainant and are supported by the submitted evidence.
In particular, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might have concluded that the Respondent has rights or legitimate interests in the Domain Name, such as:
(i) use or preparation to use the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services prior to notice of the dispute; or
(ii) being commonly known by the Domain Name (as an individual, business or other organization) even if the Respondent has not acquired any trademark or service mark rights; or
(iii) making legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
There is no evidence in the case file that the Respondent has any rights or legitimate interests in the Domain Name.
The Respondent does not seem to be affiliated with the Complainant in any way. There is no evidence that “akemaincs” is the Respondent’s name or that the Respondent is commonly known as “akema”.
There is also no evidence that the Respondent is, or has ever been, a licensee of the Complainant or that the Respondent has ever asked, or has ever been permitted in any way by the Complainant to register or use the Complainant’s Trademark, or to apply for or use any domain name incorporating the Trademark.
Furthermore, the use of the Domain Name cannot be considered a bona fide offering of goods or services. In particular, the Respondent did not demonstrate any use or demonstrable preparation to use the Domain Name in connection with a bona fide offering of goods or services. It is also clear that the Respondent is not making any legitimate noncommercial or fair use of the Domain Name.
On the contrary, the Respondent has been using the Domain Name to impersonate the Complainant in order to buy parts and supplies at the Complainant’s expense. As set out in section 2.13 of WIPO Overview 3.0, the use of a domain name for illegal activity can never confer rights or legitimate interests on a respondent.
Finally, given the circumstances of this case, the Panel finds that the Respondent’s lack of rights or legitimate interests in the Domain Names may also be inferred by the fact that no response was filed by the Respondent. According to earlier UDRP panels, “non-response is indicative of a lack of interests inconsistent with an attitude of ownership and a belief in the lawfulness of one’s own rights” (see GA Modefine S.A. and Giorgio Armani S.p.A. v. Yoon-Min Yang, WIPO Case No. D2005-0090; and Pomellato S.p.A. v. Richard Tonetti, WIPO Case No. D2000-0493).
Therefore, based on the evidence, the Panel is satisfied that the second element of the Policy is met.
C. Registered and Used in Bad Faith
In the Panel’s view there is no other plausible explanation why the Respondent registered the Domain Name, other than the Respondent being aware and targeting of the Complainant and the Trademark. This is emphasized by the fact that the Respondent was involved in a similar UDRP procedure with the Complainant concerning a similar domain name. See Arkema France v. Antonietta LoRusso NA, VirtualOffice, WIPO Case No. D2018-0982. Similar as in the present matter, the Respondent conducted fraudulent activities through the domain name in that case.
As set out in section 3.4 of WIPO Overview 3.0, not only the use of a domain name to host a website may constitute bad faith. The Respondent has been using the Domain Name to send fraudulent emails. The use of the Domain Name for such activities constitutes bad faith.
Finally, although the lack of a reply by the Respondent as such cannot by itself lead to the conclusion that there is use in bad faith, the cumulative circumstances as outlined in the decision are sufficient for the Panel to find that the use of the Domain Name by the Respondent is in bad faith.
In light of the above circumstances, the Panel is satisfied that the third element of the Policy is met and that the Domain Name was 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 Domain Name <akemaincs.com> be transferred to the Complainant.
Willem J. H. Leppink
Date: April 25, 2019