Huntsman International LLC v. Ronald Mawejje
Claim Number: FA2206002000343
Complainant is Huntsman International LLC (“Complainant”), represented by John C. Cain of Munck Wilson Mandala, LLP, Texas, USA. Respondent is Ronald Mawejje (“Respondent”), Uganda.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <huntsmangroups.com>, registered with Cosmotown, Inc.
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.
Charles A. Kuechenmeister, Panelist.
Complainant submitted a Complaint to the Forum electronically on June 14, 2022; the Forum received payment on June 14, 2022.
On June 29, 2022, Cosmotown, Inc. confirmed by e-mail to the Forum that the <huntsmangroups.com> domain name (the Domain Name) is registered with Cosmotown, Inc. and that Respondent is the current registrant of the name. Cosmotown, Inc. has verified that Respondent is bound by the Cosmotown, 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 July 1, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of July 21, 2022 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@huntsmangroups.com. Also on July 1, 2022, 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 July 28, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Charles A. Kuechenmeister 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 a Response from Respondent.
Complainant requests that the Domain Name be transferred from Respondent to Complainant.
A. Complainant
Complainant operates in the chemicals industry. It has rights in the HUNTSMAN mark through its registration of the mark with multiple trademark authorities, including the United States Patent and Trademark Office (“USPTO”). Respondent’s <huntsmangroups.com> Domain Name is identical or confusingly similar to Complainant’s HUNTSMAN mark as it wholly incorporates the mark and differs only by the addition of the generic term “groups” and the “.com” generic top-level domain (gTLD).
Respondent has no rights or legitimate interests in the Domain Name. It is not commonly known by the Domain Name. Respondent is not affiliated with Complainant and Complainant has not authorized or licensed Respondent to use its HUNTSMAN mark. Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or for a legitimate non-commercial or fair use but instead uses it for an email account with which it impersonates Complainant and perpetrates an email phishing scheme. Further, the Domain Name resolves to an inactive website.
Respondent registered and uses the Domain Name in bad faith. It uses the Domain Name only for an email account with which it perpetrates a phishing scheme, and it registered the Domain Name with constructive and actual knowledge of Complainant’s rights in the HUNTSMAN mark.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 a complainant to 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 the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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”), WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
The HUNTSMAN mark was registered to Complainant with multiple trademark authorities throughout the world, including the USPTO (Reg. No. 4,095,872, registered on February 7, 2012). (List of registrations world-wide submitted as Complaint Exhibit B and USPTO registration certificate included in Complaint Exhibit C). Complainant’s registration of its mark with the USPTO and other governmental trademark authorities establishes its rights in that mark for the purposes of Policy ¶ 4(a)(i). State Farm Mutual Automobile Insurance Company v. Henry Francis, FA 1738716 (Forum July 28, 2017) (acknowledging complainant’s rights in a mark when it had registered the mark with the United States Patent and Trademark Office and the Canadian Intellectual Property Office).
Respondent’s <huntsmangroups.com> Domain Name is identical or confusingly similar to Complainant’s HUNTSMAN mark. It incorporates the mark in its entirety, merely adding the generic term “groups” and the “.com” gTLD. MTD Products Inc. v. J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Name.
For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the HUNTSMAN mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) Before any notice to the respondent of the dispute, the respondent’s 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;
(ii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) The respondent is 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.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) it is not commonly known by the Domain Name, (ii) Respondent is not affiliated with Complainant and Complainant has not authorized or licensed Respondent to use its HUNTSMAN mark, (iii) Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or for a legitimate non-commercial or fair use but instead uses it for an email account with which it impersonates Complainant and perpetrates an email phishing scheme, and (iv) the Domain Name resolves to an inactive website. These allegations are addressed as follows:
The WHOIS information furnished to the Forum by the registrar lists “Ronald Mawejje” as the registrant of the Domain Name. This name bears no resemblance to the Domain Name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no Response has been filed UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent’s use of the same), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Panel is satisfied that Respondent has not been commonly known by the Domain Name.
Complainant states that Respondent is not affiliated with it and that it has never authorized or permitted Respondent to use its mark. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”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.”).
Complaint Exhibit F consists of a string of emails in which a person posing as “Peter R. Huntsman” and writing from the email address procurement@huntsmangroups.com purports on behalf of Complainant to order chemicals from one of Complainant’s suppliers. Complainant states that Peter R. Huntsman is in fact its corporate President, CEO, and Chairman of the Board of Directors. Another email is from the supplier who notes an incorrect address for Complainant in the first email and inquires whether the first is genuine. The emails all appear to be related to purported Complainant orders of products from one or more of its suppliers and are of a general business nature relating in broad terms to that. They do not solicit sensitive private information such as account numbers, passwords, and the like, so these communications cannot be considered as phishing, which is a fraudulent attempt to obtain sensitive information such as usernames, passwords and credit card details by disguising oneself as a trustworthy entity in an electronic communication. Nevertheless, Respondent is posing and passing off as Complainant. Using a domain name to pass off as a complainant is neither a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use as contemplated by Policy ¶ 4(c)(iii). Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“Passing off as a complainant through e-mails is evidence that a respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) & (iii).”), Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”), Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name).
Complainant states that the website resolving from the Domain Name redirects the visitor to complainant’s own website at <huntsman.com> but has no substantive content. Complainant did not submit a screenshot of Respondent’s website or any other evidence of Respondent’s website. These allegations are plausible and are uncontroverted, however, and the Panel accepts them as true. Nevertheless, as Respondent is making an active use of the Domain Name for the emails described above, Respondent cannot be said to be making no active use of the Domain Name, and the Panel rejects the passive holding argument.
Taking into account the factors first discussed above, however, the evidence furnished by Complainant establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.
Policy ¶ 4(b) sets forth a nonexclusive list of five circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the 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 the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s web site or location or of a product of service on the respondent‘s web site or location.
(v) the respondent has provided false contact details to the registrar.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use. As discussed above, Respondent is using the Domain Name for an email account which it uses to pass off as Complainant. The evidence does not disclose exactly how purported attempts by Complainant to order chemicals from its suppliers might serve some fraudulent purpose but it is clear that Respondent is impersonating Complainant with these emails, and this, in and of itself, is evidence of bad faith. MidFirst Bank v. Smith, FA0907001274302 (Forum Aug. 31, 2009) (use of the disputed domain name to pass oneself off as the Complainant constitutes bad faith registration and use of the domain name pursuant to Policy ¶ 4(b)(iv)). This may not fit within any of the circumstances described in Policy ¶ 4(b) but that paragraph recognizes that mischief can assume many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005), Bloomberg Finance L.P. v. Domain Admin - This Domain is For Sale on GoDaddy.com / Trnames Premium Name Services, FA 1714157 (Forum Mar. 8, 2017) (determining that Policy ¶ 4(b) provisions are merely illustrative of bad faith, and that the respondent’s bad faith may be demonstrated by other allegations of bad faith under the totality of the circumstances).
Next, although not argued in so many words by Complainant, Respondent registered and is holding the Domain Name, which fully incorporates the HUNTSMAN mark. As discussed above, however, Respondent has no connection with that mark or affiliation with its owner, the Complainant. The nonexclusive nature of Policy ¶ 4(b) allows for consideration of additional factors in an analysis for bad faith, and registering and using a domain name that is confusingly similar to a trademark with which the respondent has no connection is evidence of opportunistic bad faith. Kraft Foods (Norway) v. Wide, D2000-0911 (WIPO Sept. 23, 2000) (“[T]he fact that Respondent chosen [sic] to register a well-known mark to which [it] has no connections or rights indicates that [it] was in bad faith when registering the domain name at issue.”), Google LLC v. Noboru Maruyama / Personal, FA 2001001879162 (Forum Mar. 3, 2020) (“the registration and use of domain name that is confusingly similar to a trademark with which the respondent has no connection has frequently been held to be evidence of bad faith.”).
Complainant asserts that Respondent had constructive knowledge of Complainant and its HUNTSMAN mark when it registered the Domain Name in February 2022 (WHOIS report submitted as Complaint Exhibit f shows creation date). Arguments of bad faith based on constructive notice are generally rejected. Panels have most frequently declined to find bad faith based upon constructive knowledge. The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). Nevertheless, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the Domain Name. Complainant’s HUNTSMAN mark was registered in 2012 and had been used in commerce at least as early as 1994 (USPTO registration certificate included in Complaint Exhibit 3 shows a first use in 1994). Further, Complainant’s name is well-known throughout the world (list of countries in which Complainant’s mark is registered submitted as Complaint Exhibit B), and Respondent copied it verbatim into the Domain Name. More importantly, Respondent was sufficiently aware of Complainant to know and use the name of its President and CEO in its emails. Registering a confusingly similar domain name with actual knowledge of a complainant’s rights in its mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). 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).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <huntsmangroups.com> Domain Name be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
July 29, 2022
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