Lonza Ltd. v. Anita Wang
Claim Number: FA2105001947775
Complainant is Lonza Ltd. (“Complainant”), represented by Jake M Christensen of Greer, Burns & Crain LTD, Illinois, USA. Respondent is Anita Wang (“Respondent”), Portugal.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lonzq.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 27, 2021; the Forum received payment on May 27, 2021.
On May 29, 2021, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <lonzq.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 June 3, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 23, 2021 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@lonzq.com. Also on June 3, 2021, 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 June 25, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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
Complainant contends as follows:
Complainant is one of the leading companies providing manufacturing services to the pharmaceutical, biotech and specialty ingredients markets with revenues of over $2.7 billion in 2020 in the United States alone.
Complainant has rights in the LONZA mark through Complainant’s registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <lonzq.com> domain name is confusingly similar to Complainant’s LONZA mark as it comprises a common typographical misspelling by replacing the letter “A” with the letter “Q” while adding the “.com” generic top level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <lonzq.com> domain name. Respondent is not commonly known by the at-issue domain name nor has Respondent been authorized by Complainant to use the LONZA mark. Respondent has not used the domain name in connection with a bona fide offering of goods or services as the resolving website for the disputed domain name is inactive.
Respondent registered and uses the <lonzq.com> domain name in bad faith. Respondent fails to make an active use of the resolving website. Respondent also uses the at-issue domain name in an email phishing scheme. Finally, Respondent engaged in typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the LONZA mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the LONZA trademark.
Respondent uses the domain name to facilitate fraud.
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 at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the LONZA mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
Respondent’s <lonzq.com> domain name incorporates Complainant’s entire LONZA trademark merely replacing the mark’s letter “a” with a letter “q” and adding the generic top-level domain name “.com.” Respondent’s minor alterations to Complainant’s trademark in creating the at-issue domain name fail to distinguish the domain name from Complainant’s trademark. Therefore, the Panel concludes that Respondent’s <lonzq.com> domain name is confusingly similar to Complainant’s LONZA trademark pursuant to Policy ¶ 4(a)(i). See Omaha Steaks International, Inc. v. DN Manager / Whois-Privacy.Net Ltd, FA 1610122 (Forum July 9, 2015) (finding, “The domain name differs from the mark only in that the domain name substitutes the letter ‘a’ in the word ‘steak’ with the letter ‘c’ and adds the generic Top Level Domain (‘gTLD’) ‘.com.’ These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy.”); see also, Staples, Inc. v. Whois Privacy Shield Services, FA 1617690 (Forum June 5, 2015) (holding that “Changing a single letter (especially when it is the final letter) is a minor enough change to support a finding of confusing similarity under Policy ¶ 4(a)(i).”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “Anita Wang” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <lonzq.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the <lonzq.com> domain name for the purposes of Policy ¶ 4(c)(ii). See H-D U.S.A., LLC, v. ilyas Aslan / uok / Domain Admin ContactID 5645550 / FBS INC / Whoisprotection biz, FA 1785313 (Forum June 25, 2018) (“The publicly available WHOIS information identifies Respondent as ‘Ilyas Aslan’ and so there is no prima facie evidence that Respondent might be commonly known by either of the [<harleybot.bid> and <harleybot.com>] domain names.”); see also, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sept. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”).
Additionally, Respondent holds the <lonzq.com> domain name passively as the domain name fails to address any internet content. Respondent’s failure to actively use its <lonzq.com> domain name indicates neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Activision Blizzard, Inc. / Activision Publishing, Inc. / Blizzard Entertainment, Inc. v. Cimpress Schweiz GmbH, FA 1737429 (Forum Aug. 3, 2017) (“Complainant insists that Respondent has made no demonstrable preparations to use the disputed domain name. When Respondent is not using the disputed domain name in connection with an active website, the Panel may find that Respondent is not using the disputed domain name for a bona fide offering of goods or services… As Respondent has not provided a response to this action, Respondent has failed to meet its burden regarding proof of any rights or legitimate interest in the disputed domain.”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶ 4(a)(ii).
The at-issue domain name was registered and is being used in bad faith. As discussed below without limitation, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First as mentioned above regarding rights and interests, Respondent holds the at-issue confusingly similar domain name passively. Registering a confusingly similar domain name and failing to make active use of such domain name without any benign rational for doing so demonstrates Respondent’s bad faith per Policy ¶ 4(a)(iii). See Dermtek Pharmaceuticals Ltd. v. Sang Im / Private Registration, FA1310001522801 (Forum Nov. 19, 2013) (holding that because the respondent’s website contained no content related to the domain name and instead generated the error message “Error 400- Bad Request,” the respondent had registered and used the disputed domain name in bad faith pursuant to Policy ¶ 4(a)(iii)).
Next, notwithstanding that panels may characterize passive use or inactive use as a domain name’s failing to address internet content, Respondent in fact uses the at-issue domain name in connection with an email phishing scheme. To wit, Respondent sent several emails with a domain hosted by the at-issue domain name. The email pretends to be from Complainant so as create the illusion email recipients are communicating with Complainant when they are not. Respondent’s trickery allows Respondent to gain access to financial information and payment details relating to Complainant and one of Complainant’s customers. Respondent’s use of the domain name to afford a confusingly similar email address in furtherance of fraud shows Respondent’s bad faith registration and use of the <lonzq.com> domain name. See CoorsTek, Inc. v. Gwendolyn K Bohn / CoorsTek Inc, FA 1764186 (Forum Feb. 2, 2018) (“Respondent sent email to users seeking employment at Complainant’s business and asked for personal information such as a photo ID. Therefore, the Panel finds Respondent’s emails constitute a phishing scheme and this indicates bad faith registration and use per Policy ¶ 4(a)(iii).”).
Furthermore, Respondent engages in typosquatting. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark and then uses the string in a domain name wishing and hoping that internet users will inadvertently type the malformed string when searching for products or services associated with the target trademark and/or will, as appears to be the case here, read the misspelled trademark laden domain name and confuse it with its target trademark. As all can see, the at-issue domain name contains Complainant’s LONZA trademark with its “a” replaced by a “q.” Notably, “q” is directly above the “a” on a standard (Dvorak) keyboard making the “q” a likely result of mistyping an intended “a” although Respondent’s current phishing scheme does not rely on mistyping to be effective. Respondent’s typosquatting, in itself, is evidence of Policy ¶ 4(a)(iii) bad faith. See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sept. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”); see also LifeLock, Inc. v. Adam Viener / ThunkTunk LLC, FA1409001579875 (Forum Oct. 28, 2014) (“As the Panel has noted above, at the conclusion of its findings under the first Policy element under Policy ¶ 4(a)(i), the disputed domain name <lifelocl.com> differs from the LIFELOCK mark only by substituting the letter ‘L’ for the letter ‘K’ in the LOCK-portion of Complainant’s registered mark. The Panel finds this behavior amounts to typosquatting, and as such the Panel finds this to be evidence of bad faith pursuant to Policy ¶ 4(a)(iii).”).
Finally, Respondent had actual knowledge of Complainant’s rights in the LONZA mark when it registered <lonzq.com> as a domain name. Respondent’s actual knowledge is evident from the notoriety of Complainant’s long standing trademark, from the apparent similarity between such mark and Respondent’s domain name, and from Respondent use of the domain name to pose as Complainant’s in an email phishing scheme. Respondent’s registration and use of the <lonzq.com> domain name with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); see also, Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lonzq.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: June 28, 2021
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