Coperion GmbH v. James Christain
Claim Number: FA2301002026798
Complainant is Coperion GmbH (“Complainant”), represented by Deborah A. Wilcox of Baker & Hostetler LLP, USA. Respondent is James Christain (“Respondent”), USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <coperlon.com>, registered with NameCheap, 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 Forum electronically on January 9, 2023; Forum received payment on January 9, 2023.
On January 9, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <coperlon.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, 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 January 12, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 1, 2023 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@coperlon.com. Also on January 12, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.
On February 8, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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 is the worldwide market and technology leader in compounding & extrusion, feeding and weighing, and materials handling machinery and services. Founded in 1879 and with 30 locations worldwide, Complainant has been offering machinery and technology to a wide variety of industries along the process chain for a combined with comprehensive services across the world. Complainant has rights in the COPERION mark through multiple trademark registrations, including in the United States in 2008.
Complainant alleges that the disputed domain name is identical or confusingly similar to its COPERION mark as it merely misspells the mark (changing the “i” to an “l”) and adds the “.com” generic top-level domain (“gTLD”). Complainant cites UDRP precedents to support its position.
According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain name as Respondent is not licensed or authorized to use Complainant’s COPERION mark and is not commonly known by the disputed domain name. Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Rather, the domain name resolves to an inactive site and Respondent is using the disputed domain name to commit fraud through impersonating Complainant in emails that request transfer of funds. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith by passing off as Complainant through email fraudulently to solicit money. Respondent’s registration and use of the disputed domain name is an example of typosquatting. Respondent registered the disputed domain name with a privacy service and constructive and/or actual knowledge of Complainant’s rights in its mark. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark COPERION and uses it to provide materials handling machinery and services.
Complainant’s rights in its mark date back to at least 2008.
The disputed domain name was registered in 2022.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name does not resolve to an active website; instead, it is used in fraudulent emails to impersonate Complainant and to request transfer of funds; the signature block of the fraudulent emails displays Complainant’s actual business address and the URL of its legitimate website.
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 disputed domain name merely misspells Complainant’s COPERION mark (changing the “i” to an “l”) and adds the “.com” generic top-level domain (“gTLD”). Misspelling a mark has been found insufficient to defeat a finding of confusing similarity. See Textron Innovations Inc. v. Adams Franky LLC / Franky LLC, FA2207002003865 (Forum Aug. 4, 2022) (finding confusing similarity where the disputed domain name “merely substitutes an ‘I’ for the ‘l’, which does nothing to distinguish the domain name from the mark”); see also Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (“Respondent arrives at each of the disputed domain names by merely misspelling each of the disputed domain names and adding the gTLD ‘.com.’ This is insufficient to distinguish the disputed domain names from Complainant’s trademark.”). Thus the Panel finds that the <coperlon.com> domain name is confusingly similar to Complainant’s COPERION mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its COPERION mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. 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). Here, the WHOIS information for the disputed domain name lists the registrant as “James Christain”. Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).
Complainant presents evidence showing that the disputed domain name is used in fraudulent emails to impersonate Complainant and to request transfer of funds. Using a disputed domain name in furtherance of fraud or other illegal activities has consistently been found not to satisfy Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii). See e.g., 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.”); see also Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) (“On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).”); see also 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). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).
The disputed domain name does not resolve to an active website. Previous Panels have found that a respondent’s failure to actively use a disputed domain name is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”). On this ground also, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent (who did not reply to Complainant’s contentions) 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 uses the disputed domain name to impersonate Complainant in fraudulent emails. This evinces bad faith under Policy ¶ 4(a)(iii) and/or Policy ¶ 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also Smiths Group plc v. Snooks, FA 1372112 (Forum Mar. 18, 2011) (finding that the respondent’s attempt to impersonate an employee of the complainant was evidence of bad faith registration and use under Policy ¶ 4(a)(iii)); see also Airbnb, Inc. v. JAMES GRANT, FA1760182 (Forum December 28, 2017) (“Using a misleading email address to defraud unwary customers certainly constitutes bad faith.”); see also SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA14009001581255 (Forum Oct. 29, 2014) (“The Panel finds that Respondent’s use of the domain name’s e-mail suffix for fraudulent purposes illustrates Policy ¶ 4(a)(iii) bad faith.”). Thus the Panel finds bad faith registration and use pursuant to Policy ¶ 4(a)(iii) and/or Policy ¶ 4(b)(iv).
Further, Respondent is typosquatting by replacing the “i” by an “l” in Complainant’s COPERION mark. Past panels have found that typosquatting indicates registration and use in bad faith under Policy ¶ 4(a)(iii). See Cost Plus Management Services, Inc. v. xushuaiwei, FA 1800036 (Forum Sep. 7, 2018) (“Typosquatting itself is evidence of relevant bad faith registration and use.”). Thus the Panel finds bad faith registration and use pursuant to Policy ¶ 4(a)(iii).
Finally, Respondent registered the disputed domain name with actual knowledge of Complainant’s mark: the signature block of the fraudulent emails displays Complainant’s actual business address and the URL of its legitimate website. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant’s rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) (“There is no place for constructive notice under the Policy.”); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”); 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). The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark prior to Respondent’s registration of the disputed domain name and that this constitutes bad faith under 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 <coperlon.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 8, 2023
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