Lonza Ltd. v. Accounts Payable / Accounts Receivable Ch
Claim Number: FA1902001832131
Complainant is Lonza Ltd. (“Complainant”), represented by Tonja Proehl of Greer, Burns & Crain, LTD., Illinois, USA. Respondent is Accounts Payable / Accounts Receivable Ch (“Respondent”), Massachusetts, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <lonza-pharm.com>, <lonza-pharm.net>, and <lonza-pharm.org>, registered with Wild West Domains, LLC.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 28, 2019; the Forum received payment on February 28, 2019.
On March 1, 2019 and March 5, 2019, Wild West Domains, LLC confirmed by e-mail to the Forum that the <lonza-pharm.com>, <lonza-pharm.net>, and <lonza-pharm.org> domain names are registered with Wild West Domains, LLC and that Respondent is the current registrant of the names. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, LLC 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 March 6, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 26, 2019 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@lonza-pharm.com, postmaster@lonza-pharm.net, and postmaster@lonza-pharm.org. Also on March 6, 2019, 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 March 27, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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 names be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <lonza-pharm.com>, <lonza-pharm.net>, and <lonza-pharm.org> domain names are confusingly similar to Complainant’s LONZA mark.
2. Respondent does not have any rights or legitimate interests in the <lonza-pharm.com>, <lonza-pharm.net>, and <lonza-pharm.org> domain names.
3. Respondent registered and uses the <lonza-pharm.com>, <lonza-pharm.net>, and <lonza-pharm.org> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant uses its LONZA mark in the pharmaceutical, biotech and specialty ingredients markets. Complainant holds a registration for the LONZA mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 956,300, registered Apr. 3, 1973).
Respondent the <lonza-pharm.com> domain name on February 26, 2019, the <lonza-pharm.net> domain name on February 28, 2019, and the <lonza-pharm.org> domain name on March 1, 2019, and uses them to impersonate Complainant in a fraudulent email phishing 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 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 Panel finds that Complainant has established rights in the LONZA mark for the purposes of Policy ¶ 4(a)(i) through its registration of the mark with the USPTO. See Humor Rainbow, Inc. v. James Lee, FA 1626154 (Forum Aug. 11, 2015) (stating, “There exists an overwhelming consensus amongst UDRP panels that USPTO registrations are sufficient in demonstrating a complainant’s rights under Policy ¶ 4(a)(i) and its vested interests in a mark. . . . Due to Complainant’s attached USPTO registration on the principal register at Exhibit 1, the Panel agrees that it has sufficiently demonstrated its rights per Policy ¶ 4(a)(i).”).
Respondent’s <lonza-pharm.com>, <lonza-pharm.net>, and <lonza-pharm.org> domain names all add the descriptive term “pharm,” a hyphen, and a gTLD. These changes to a registered mark do not sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See 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.”); see also Blizzard Entertainment, Inc. v. XINXIU ZENG / haimin liang, FA 1736365 (Forum July 19, 2017) (finding that the addition of punctuation—specifically, a hyphen—did not sufficiently distinguish the disputed domain name from complainant’s registered mark). Accordingly, the Panel finds that Respondent’s <lonza-pharm.com>, <lonza-pharm.net>, and <lonza-pharm.org> domain names are confusingly similar to Complainant’s LONZA mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also 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”).
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain names, as Respondent is not commonly known by the disputed domain names, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. The WHOIS identifies “Accounts Payable / Accounts Receivable Ch” as the registrant of the disputed domain names. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii). See 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); see also Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 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.”).
Complainant argues that Respondent is using the domain names to impersonate Complainant in a fraudulent email phishing scheme. Using a confusingly similar domain name to phish for personal/financial information by passing off as a complainant in emails evinces a lack of rights and legitimate interests under Policy ¶¶ 4(c)(i) and (iii). See Caterpillar Inc. v. ruth weinstein, FA 1770352 (Forum March 7, 2018) (“Use of a disputed domain name in an attempt to pass itself off as a complainant and to conduct a phishing scheme is indicative of a failure to use said domain name in connection with a bona fide offer of goods and services per Policy ¶ 4(c)(i) or a legitimate noncommercial or otherwise fair use per Policy ¶ 4(c)(iii).”). Complainant provides a copy of the emails sent by Respondent, which shows that Respondent requests users to update banking information. The Panel finds that Respondent uses the disputed domain names in connection with a phishing scheme and thus has no rights in the disputed domain names under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that Respondent has engaged in a pattern of bad faith with prior findings of bad faith and the registration of multiple confusingly similar domain names. A complainant may use prior adverse UDRP decisions against a respondent, along with the registration of multiple confusingly similar domain names, to demonstrate bad faith under Policy ¶ 4(b)(ii). See DIRECTV, LLC v. michal restl c/o Dynadot, FA 1788826 (Forum July 5, 2018) (“The record contains evidence of Respondents previous eleven UDRP actions, all of which resulted in the transfer of the domain names, thus establishing bad faith per Policy ¶ 4(b)(ii).”); see also Deutsche Telekom AG v. Dana Dudones, FA 1798440 (Forum Sep. 7, 2018) (“Here the same registrant registered the seven disputed domain names over a two-day period [. . .] Thus the Panel finds that Respondent’s registration of multiple domain names in the present case evinces bad faith registration under Policy ¶ 4(b)(ii).”). Complainant provides a copy of the email scheme formerly employed by Respondent using a different domain name (<lonza.org>), and provides the corresponding adverse decision listing that respondent as “Manchester Accounts Receivable Ch –.” The Panel finds that Respondent has exhibited a pattern of bad faith registration, which constitutes bad faith under Policy ¶ 4(b)(ii).
Complainant last claims that Respondent registered the disputed domain names primarily for the purpose of disrupting Complainant’s business and creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the phishing emails sent using the disputed domain names. Using a confusingly similar domain name in a manner disruptive of a complainant’s business by trading upon the goodwill of a complainant for commercial gain evinces bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”). Accordingly, the Panel finds that Respondent disrupts Complainant’s business and attempts to commercially benefit off Complainant’s mark in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
The Panel finds that Complainant has satisfied 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 <lonza-pharm.com>, <lonza-pharm.net>, and <lonza-pharm.org> domain names be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 28, 2019
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