Lonza Ltd. and Lonza Biologics Inc. v. Suprime Hosting / Loenel Tchagha
Claim Number: FA1905001843788
Complainant is Lonza Ltd. and Lonza Biologics Inc. (“Complainant”), represented by Tanja Proehl of Greer, Burns & Crain, Ltd., Illinois, USA. Respondent is Suprime Hosting / Loenel Tchagha (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lonzabiologicseu.com> (‘the Domain Name’), registered with NameSilo, 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.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 17, 2019; the Forum received payment on May 17, 2019.
On May 20, 2019, NameSilo, LLC confirmed by e-mail to the Forum that the <lonzabiologicseu.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 May 20, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 10, 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@lonzabiologicseu.com. Also on May 20, 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 June 11, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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
The Complainant’s contentions can be summarized as follows:
The Complainant is the owner of the mark LONZA registered, inter alia, in the USA with first use recorded as 1955 for pharmaceutical products. Lonza is an invented term used as part of the Complainant’s corporate name and the name of a number of its associated companies. The Complainant owns Lonza.com.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s mark adding only the descriptive and common terms ‘biologics’ and ‘eu’ and the gTLD .com which do not prevent this confusing similarity. The Domain Name is also similar to the Complainant’s associated company’s name Lonza Biologics Inc.
The Respondent does not have any rights or interests in the Domain Name, is not commonly known by the Domain Name and is not authorized by the Complainant.
The Domain Name has been used for misleading and fraudulent activities to offer pharmaceutical products under an identical name as Lonza Biologics Inc the Complainant’s associated company when there is no connection between this fraudulent company and the Complainant or any of its associated companies and falsely using the address of another of one of the Complainant’s associated companies Lonza Inc. In a WhatsApp conversation, the Respondent asserted the pharmaceuticals were stolen. This is not a bona fide offering of goods or services or a noncommercial legitimate fair use. It is bad faith registration and use designed to disrupt the business of the Complainant and mislead Internet users.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark LONZA registered, inter alia, in the USA with first use recorded as 1955 for pharmaceutical products. Lonza is an invented term used as part of the Complainant’s corporate name and the name of a number of its associated companies.
The Domain Name registered in 2019 offers pharmaceutical products that the Respondent said were stolen using the name of one of the Complainant’s associated companies and the address of another.
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”).
Identical or Confusingly Similar
The Domain Name is confusingly similar the Complainant's LONZA mark (which is registered, inter alia, in the USA with first use for pharmaceutical products recorded as 1955) adding only the word ‘biologics’, the geographical term ‘eu’ and the gTLD ‘.com’ which do not prevent confusing similarity between the Domain Name and the Complainant’s mark.
Previous panels have found confusing similarity when a respondent merely adds generic terms to a Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000) (finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of ‘biologics’ and ‘eu’ in the Domain Name to the Complainant's mark does not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy.
The gTLD ‘.com’ does not serve to distinguish a domain name from a Complainant’s mark. See Red Hat Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s LONZA registered mark.
As such, the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Complainant has not authorized the use of its mark. There is no evidence or reason to suggest the Respondent is commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 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).
It is clear from the evidence that the Respondent has used the Domain Name to imitate the Complainant and offer pharmaceutical products the origin of which are unknown, but that the Respondent says are stolen. The usage of a sign confusingly similar to the Complainant’s LONZA mark which has a reputation for pharmaceutical products in relation to such products that are said to be stolen is not fair as the site does not make it clear that there is no commercial connection with the Complainant and the Respondent is using the name of one of the Complainant’s associated companies and the address of another to imitate the Complainant. As such it cannot amount to the bona fide offering of services or a noncommercial legitimate or fair use. See Am. Intl. Group Inc. v. Benjamin, FA 944242 (Forum May 11, 2007) (finding that the Respondent's use of a confusingly similar domain name to compete with the Complainant's business did not constitute a bona fide use of goods and services).
The Respondent has not answered this Complaint and has not provided any legitimate reason why it should be able to use the Complainant’s trademark in this way. As such, the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the Respondent’s site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by the Complainant as the Respondent uses the Complainant’s mark and references to the name of one of the Complainant’s associated companies and the address of another to offer pharmaceutical products without permission. Accordingly, the Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating likelihood of confusion with the Complainant's trademark as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of the Complainant. See Allianz of AM. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use where the respondent was diverting Internet users searching for the complainant to its own website).
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith per ¶¶ 4(b)(iii) and (iv), and has satisfied the third limb of Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lonzabiologicseu.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: June 12, 2019
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