DECISION

 

Lonza Ltd. v. Shahriar Shadrsvan / Hsd

Claim Number: FA1912001876294

 

PARTIES

Complainant is Lonza Ltd. (“Complainant”), represented by Lawrence J. Crain of Greer, Burns & Crain, Ltd., United States. Respondent is Shahriar Shadrsvan / Hsd (“Respondent”), Iran.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <mylonza.com>, registered with Web Commerce Communications Limited dba WebNic.cc.

 

PANEL

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.

 

John J. Upchurch as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to the Forum electronically on December 20, 2019; the Forum received payment on December 20, 2019.

 

On December 23, 2019, Web Commerce Communications Limited dba WebNic.cc confirmed by e-mail to the Forum that the <mylonza.com> domain name is registered with Web Commerce Communications Limited dba WebNic.cc and that Respondent is the current registrant of the name. Web

Commerce Communications Limited dba WebNic.cc has verified that Respondent is bound by the Web Commerce Communications Limited dba WebNic.cc 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 December 26, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 15, 2020 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@mylonza.com.  Also on December 26, 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 January 17, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed John J. Upchurch 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A.   Complainant

1.    Complainant, Lonza Ltd., is a leading company in the pharmaceutical, biotech, and specialty ingredients market. Complainant has rights in the LONZA mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 956,300, registered on Apr. 3, 1973). See Compl. Ex. 3. Respondent’s <mylonza.com> domain name is identical and/or confusingly similar to Complainant’s LONZA mark, as it contains the LONZA mark in its entirety, merely adding the generic or descriptive term “my” and the “.com” generic top-level domain (“gTLD”).

2.    Respondent lacks rights or legitimate interests in the <mylonza.com> domain name. Respondent is not authorized to use Complainant’s LONZA mark and is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to sell Complainant’s products without authorization from Complainant.

3.    Respondent registered and uses the <mylonza.com> domain name in bad faith. Respondent holds itself out as an authorized distributor or seller of Complainant’s products. Further, Respondent had actual knowledge of Complainant’s rights in the LONZA mark prior to its registration of the disputed domain name.

 

B.   Respondent

1.    Respondent failed to submit a response in this proceeding.

 

FINDINGS

1.    Respondent’s <mylonza.com> domain name is confusingly similar to Complainant’s LONZA mark.

2.    Respondent does not have any rights or legitimate interests in the <mylonza.com> domain name.

3.    Respondent registered or used the <mylonza.com> domain name in bad faith.

 

DISCUSSION

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 and/or Confusingly Similar

Complainant asserts rights in the LONZA mark based on its registration with the USPTO. Registration of a mark with the USPTO sufficiently confers rights in a mark for purposes of Policy ¶ 4(a)(i). See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Complainant provides copies of its registration of the LONZA mark with the USPTO (e.g., Reg. No. 956,300, registered on Apr. 3, 1973). See Compl. Ex. 3. Accordingly, the Panel finds that Complainant has established rights in the LONZA mark for the purposes of Policy ¶ 4(a)(i).

 

Complainant next argues that Respondent’s <mylonza.com> domain name is identical and/or confusingly similar to Complainant’s LONZA mark as it includes the mark in its entirety, adding the generic or descriptive term “my” and the “.com” gTLD. Additions of generic or descriptive terms and a gTLD does not distinguish a domain name for 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.”). The Panel therefore finds that the disputed domain name is confusingly similar to the LONZA mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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 Respondent lacks rights or legitimate interests in the <mylonza.com> domain name. Specifically, Complainant argues that Respondent is not commonly known by the disputed domain name and Respondent is not a licensee or authorized to use Complainant’s LONZA mark. Where a response is absent, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See 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). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”). The WHOIS information for the disputed domain name lists the registrant as “Shahriar Shadrsvan / Hsd,” and there is no other evidence to suggest that Respondent was authorized to use the LONZA mark. See Compl. Ex. 4. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per ¶ 4(c)(ii).

 

Complainant argues Respondent fails to use the <mylonza.com> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as Respondent holds itself out as an authorized distributor or seller of Complainant’s products. A respondent’s use of a disputed domain name to offer a complainant’s goods without authorization is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Fadal Engineering, LLC v. DANIEL STRIZICH,INDEPENDENT TECHNOLOGY SERVICE INC, FA 1581942 (Forum Nov. 13, 2014) (finding that Respondent’s use of the disputed domain to sell products related to Complainant without authorization “does not amount to 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 G.D. Searle & Co. v. Mahony, FA 112559 (Forum June 12, 2002) (finding the respondent’s use of the disputed domain name to solicit pharmaceutical orders without a license or authorization from the complainant does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i)). Complainant provides screenshots of Respondent’s disputed domain name which purportedly resolves to a webpage where Respondent offers Complainant’s products without authorization from Complainant. See Compl. Ex. 5. Therefore, the Panel finds that Respondent’s use of the disputed domain does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).

 

Registration and Use in Bad Faith

Complainant argues Respondent registered and uses the <mylonza.com> domain name in bad faith as Respondent sells Complainant’s products without authorization. A respondent’s use of a disputed domain name to sell a complainant’s products without authorization is evidence of bad faith under Policy  ¶ 4(b)(iii) and/or ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Cox-2 Vioxx.com, FA 124508 (Forum Oct. 16, 2002) (“Unauthorized use of Complainant’s CELEBREX mark to sell Complainant’s products represents bad faith use under Policy ¶ 4(b)(iii).”); see also Fanuc Ltd v. Mach. Control Servs., FA 93667 (Forum Mar. 13, 2000) (finding that the respondent violated Policy ¶ 4(b)(iv) by creating a likelihood of confusion with the complainant's mark by using a domain name identical to the complainant’s mark to sell the complainant’s products). Complainant provides screenshots of Respondent’s disputed domain name which purportedly resolves to a webpage where Respondent offers Complainant’s products without authorization from Complainant. See Compl. Ex. 5. Therefore, the Panel finds Complainant registered and uses the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(iii) and/or ¶ 4(b)(iv).

 

Finally, Complainant argues that Respondent had actual knowledge of Complainant’s rights in the LONZA mark at the time of registering the <mylonza.com> domain name. Actual knowledge is sufficient and may be proven through a totality of circumstances per Policy ¶ 4(a)(iii). See 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 G.D. Searle & Co. v. Pelham, FA 117911 (Forum Sept. 19, 2002) (“[I]t can be inferred that Respondent had knowledge of Complainant’s rights in the CELEBREX mark because Respondent is using the CELEBREX mark as a means to sell prescription drugs, including Complainant’s CELEBREX drug.”). Complainant argues Respondent’s use of the LONZA mark and unauthorized sale of Complainant’s goods demonstrates it had actual knowledge of Complainant’s rights in the LONZA mark prior to registering the disputed domain name. The Panel finds Respondent registered the <mylonza.com> domain name in bad faith per Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <mylonza.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

John J. Upchurch

Dated:  January 29, 2020