Huntsman International, LLC v. Hostjaja Inc / Hostjaja
Claim Number: FA1804001782063
Complainant is Huntsman International, LLC (“Complainant”), represented by Steven M. Espenshade of Pirkey Barber PLLC, Texas, USA. Respondent is Hostjaja Inc / Hostjaja (“Respondent”), Uganda.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <huntssman.com>, registered with OnlineNIC, 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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 17, 2018; the Forum received payment on April 17, 2018.
On April 27, 2018, OnlineNIC, Inc. confirmed by e-mail to the Forum that the <huntssman.com> domain name is registered with OnlineNIC, Inc. and that Respondent is the current registrant of the name. OnlineNIC, Inc. has verified that Respondent is bound by the OnlineNIC, 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 April 27, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 2018 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@huntssman.com. Also on April 27, 2018, 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 May 23, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a leading global chemical producer; it manufactures products for a variety of global industries, including plastics, chemicals, automotive, aviation, textiles, footwear, construction, technology, agriculture, health care, detergent, personal care, furniture, and appliances. It employs approximately 15,000 employees and operates more than 100 manufacturing and R&D facilities in approximately 30 countries. It had approximately $8.3 billion USD in revenue in 2017. Complainant has rights in the HUNTSMAN mark through its trademark registrations in the United States in 1997.
Complainant alleges that the disputed domain name is confusingly similar to its HUNTSMAN mark as Respondent merely adds an “s” between the letters “S” and “M” and a “.com” generic top-level domain (“gTLD”) to Complainant’s mark. Complaint cites UDRP precedents to support its position.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not authorized, licensed, or otherwise permitted to use Complainant’s HUNTSMAN mark and is not commonly known by the disputed domain name. Additionally, Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, Respondent uses the disputed domain name to pass off as Complainant. The resolving website features the address of Complainant’s official headquarters, and text summarizing Complainant’s technologies and corporate mission that has been copied directly from Complainant’s official press releases and marketing materials. The website at the disputed domain name also features a “Products” page that lists Complainant’s various products, as well as “Investor Relations,” “Newsroom,” Careers,” Innovation,” “Sustainability,” and “About Us” pages that feature text relating to Complainant that has been copied directly from Complainant’s official press releases and marketing materials. Complaint cites UDRP precedents to support its position.
Respondent registered and is using the disputed domain name in bad faith. Respondent creates a likelihood of confusion, presumably for commercial gain, by passing off as Complainant at the disputed domain name. Respondent also engages in typosquatting which is evidence of bad faith registration and use. Furthermore, Respondent had actual knowledge of Complainant’s rights in the HUNTSMAN mark prior to registering the disputed domain name. Complaint cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the mark HUNTSMAN dating back to at least 1997.
The disputed domain name was registered in 2017.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to resolve to a web site that contains Complainant’s mark and name and that mimics Complainant’s web site, including the address of Complainant’s official headquarters.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The disputed domain name is confusingly similar to Complainant’s HUNTSMAN mark as it simply misspells Complainant’s mark and adds a gTLD: the disputed domain name merely adds the letter “s” in between the “S” and “M” in Complainant’s HUNTSMAN mark. Misspelling of a mark and adding a gTLD do not negate any confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”); see also Twitch Interactive, Inc. v. Antonio Teggi, FA 1626528 (Forum Aug. 3, 2015) (finding the <twitcch.tv> domain name confusingly similar to the TWITCH TV trademark because the domain name consisted of a common misspelling of the mark by merely adding the letter “c”). Thus, the Panel finds that the disputed domain name <huntssman.com> is confusingly similar to Complainant’s HUNTSMAN mark per Policy ¶ 4(a)(i).
Respondent is not licensed, permitted, or otherwise authorized to use Complainant’s HUNTSMAN mark. Further, Respondent is not commonly known by the disputed domain name: where a response is lacking, relevant WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information for the disputed domain name identifies Respondent as “Hostjaja Inc. / Hostjaja.” As such, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Moreover, Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent attempts to pass off as Complainant by using Complainant’s name, mark and content from Complainant’s web pages on the resolving web site, including the address of Complainant’s official headquarters. Use of a disputed domain name to pass off as a complainant is not a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Nokia Corp. v. Eagle, FA 1125685 (Forum Feb. 7, 2008) (finding the respondent’s use of the disputed domain name to pass itself off as the complainant in order to advertise and sell unauthorized products of the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the disputed domain name pursuant to Policy ¶ 4(c)(iii)). Therefore, the Panel finds that Respondent is attempting to pass off as Complainant and that this is not a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) and (iii). Further, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Respondent has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
Indeed, as already noted, Respondent attempts to attract users to the disputed domain name by passing off as Complainant. Use of a disputed domain name to pass off as a complainant may evince a finding of bad faith under Policy ¶ 4(b)(iv). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant.”). Therefore, the Panel finds that Respondent is using the disputed domain name to pass off as Complainant and this constitutes bad faith per Policy ¶ 4(b)(iv).
Additionally, Respondent engaged in typosquatting when it registered the disputed domain name. Engaging in typosquatting may be evidence of bad faith under Policy ¶ 4(a)(iii). See Homer TLC, Inc. v. Artem Ponomarev, FA1506001623825 (Forum July 20, 2015) (“Finally, under this head of the Policy, it is evident that the <homededpot.com> domain name is an instance of typosquatting, which is the deliberate misspelling of the mark of another in a domain name, done to take advantage of common typing errors made by Internet users in entering into a web browser the name of an enterprise with which they would like to do business online. Typosquatting is independent evidence of bad faith in the registration and use of a domain name.”). Therefore, the Panel finds that Respondent’s typosquatting is evidence of bad faith per Policy ¶ 4(a)(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 <huntssman.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: May 23, 2018
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