Eastman Chemical Company v. Stephen Crawford / eastmanccinc
Claim Number: FA2010001916436
Complainant is Eastman Chemical Company (“Complainant”), represented by Margaret Esquenet of Finnegan, Henderson, Farabow, Garret & Dunner, L.L.P., District of Columbia, United States. Respondent is Stephen Crawford / eastmanccinc (“Respondent”), New York, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <eastmanccinc.com> ("the Domain Name"), registered with Tucows Domains Inc.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 9, 2020; the Forum received payment on October 9, 2020.
On October 13, 2020, Tucows Domains Inc. confirmed by e-mail to the Forum that the <eastmanccinc.com> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 13, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 2, 2020 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@eastmanccinc.com. Also on October 13, 2020, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On November 5, 2020 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
The Complainant is the owner of the mark EASTMAN, registered, inter alia, in the USA for chemicals with first use recorded as 1884.
The Domain Name registered in 2020 is confusingly similar to the Complainant’s mark adding only the two letters "cc" (which would indicate chemical company to the Complainant’s customers), the generic term "inc" and the gTLD ".com" none of which prevents the said confusing similarity.
The Respondent does not have rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant. The Domain Name was registered falsely in the name of one of the Complainant’s officers.
The Domain Name was pointed to the Complainant’s web site, but currently does not resolve to any web site after the Complainant arranged for the use to be disabled. The Domain Name has been used for a fraudulent e mail scheme using the name of one of the officers of the Complainant’s company, the Complainant’s logo and its mailing address. This cannot be a bona fide offering of goods or services or a legitimate noncommercial or fair use. It is registration and use in bad faith. The Complainant has suffered an increase in such attacks recently which may be connected.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark EASTMAN, registered, inter alia, in the USA for chemicals with first use recorded as 1884.
The Domain Name registered in 2020 has been used for a fraudulent e-mail scheme.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
The Domain Name consist of the Complainant's EASTMAN mark (which is registered in the USA for chemicals with first use recorded as 1884), the letters "cc" (intended to reflect ‘chemical company’ in the Complainant’s company name), the generic term "inc" and the gTLD ".com".
The addition of a generic term and a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v Edna Sherman, FA 1652781 (Forum Jan 22, 2016) (Finding the addition of a generic term and gTLD is insufficient to distinguish a disputed domain name from a mark under Policy 4(a)(i).) Nor does the addition of one or two letters such as the letters "cc" distinguish the Domain Name from the Complainant's trade mark pursuant to the Policy. See Twitch Interactive Inc. v Antonio Teggi, FA 1626528 (Forum Aug 3, 2015) (where an additional ‘c’ was added).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in reality, commonly known by the Domain Name.
The Domain Name has been used in a fraudulent phishing attempt using the Complainant’s EASTMAN name, its logo, mailing address and the name of one of its officers. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services or a legitimate noncommercial or fair use. See DaVita Inc. v Cynthia Rochelo FA 1738034 (Forum July 20, 2017) (finding that ‘Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate noncommercial or fair use’).
As such the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The Panel notes the allegation that the Domain Name was registered falsely in the name of one of the Complainant’s officers although could not see evidence of this in the papers for the Complaint in the WhoIs information provided.
However, impersonating a complainant by use of a complainant’s mark in a fraudulent phishing attempt is disruptive and evinces bad faith registration and use. See Microsoft Corporation v Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr 4 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy 4(b)(iii).)
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <eastmanccinc.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: November 5, 2020
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