WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Dow Chemical Company v. Rubena Lowe, I sell domains! Please contact me directly!
Case No. D2020-1033
1. The Parties
Complainant is The Dow Chemical Company, United States of America (“United States”), represented by The GigaLaw, Douglas M. Isenberg, Attorney at Law, LLC, United States.
Respondent is Rubena Lowe, I sell domains! Please contact me directly!, United States.
2. The Domain Name and Registrar
The disputed domain name <d0w.com> (the “Domain Name”) is registered with Dynadot, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 27, 2020. On April 29, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On April 29, 2020, 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 April 30, 2020. In accordance with the Rules, paragraph 5, the due date for Response was May 20, 2020. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 25, 2020.
The Center appointed Robert A. Badgley as the sole panelist in this matter on May 27, 2020. 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, founded in 1897, is a leading manufacturer of myriad chemical and related products for various industrial and consumer uses. Complainant holds thousands of registered trademarks in most jurisdictions throughout the world for the trademark DOW, including United States Patent & Trademark Reg. No. 140,588, registered March 22, 1921. The DOW mark has been recognized as well known or even famous in several prior decisions under the UDRP.
Complainant has owned the domain name <dow.com> since 1992, and has used that domain name for its main commercial website and for email purposes.
The Domain Name was registered on June 15, 2002. According to Complainant, the Domain Name resolves to a “monetized parking page” which includes various hyperlinks, such as “Dow Chemicals”, “Plastic Products”, “Chemical Manufacturers”, and so forth. In addition, Complainant has alleged and provided evidence that Respondent has been using the Domain Name to create a fraudulent and misleading email address for use in a phishing scam. In one instance, Respondent sent a bogus email to one of Complainant’s customers, seeking payment to a bank unaffiliated with Complainant.
5. Parties’ Contentions
Complainant contends that it has satisfied all three elements required under the Policy for a transfer of the Domain Name.
Respondent did not respond to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) 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 Panel concludes that Complainant has rights in the mark DOW through longstanding use and widespread registration demonstrated in the record. The Panel also finds that the Domain Name is confusingly similar to that mark. The only difference is that the Domain Name replaces the letter “o” with the number “0”. The fact that the letter “o” and the number “0” are routinely confused, look very similar, and are adjacent to each other on the QWERTY keyboard make the Domain Name confusingly similar to the DOW mark.
Complainant has established Policy paragraph 4(a)(i).
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a 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.
The Panel concludes that Respondent lacks rights or legitimate interests in respect of the Domain Name. Respondent has not come forward in this proceeding to explain her bona fide vis-à-vis the Domain Name. Moreover, given the fame of the DOW mark and the fact that the Domain Name appears to be a deliberate misspelling of that mark, i.e., a clear attempt at typo-squatting, the Panel can conceive of no legitimate basis upon which this Domain Name could have been registered by Respondent.
Moreover, using the Domain Name to host a fraudulent email address in aid of a phishing scam cannot be considered a legitimate reason for registering the Domain Name. As set forth in WIPO Overview of WIPO Panel View on Selected UDRP Questions, Third Edition (“WIPO Overivew 3.0), section 2.13.1: “Panels have categorically held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent.” See also BTWN Exhibits, LLC v. Registration Private, Domains By Proxy, LLC / Ahmed Fawzy, ASM Marketing, WIPO Case No. D2020-0036 (“[t]he use of the Domain Name for an illegal activity such as constructing an email composition containing the Domain Name for deceiving purposes can never confer rights or legitimate interests on Respondent”).
Complainant has established Policy paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has registered the Domain Name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent registered and used the Domain Name in bad faith. Respondent clearly had Complainant and its well-known DOW mark in mind when registering the Domain Name. This is apparent by the use to which she has put the Domain Name, including as a fake email address used in a fraudulent phishing scam perpetrated, at least, on one of Complainant’s customers. This phishing scam is clearly a fraudulent and bad faith use of the Domain Name.
Complainant has established Policy paragraph 4(a)(iii).
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 <d0w.com> be transferred to Complainant.
Robert A. Badgley
Date: May 27, 2020