Lonza Ltd. v. lei yang
Claim Number: FA2002001883706
Complainant is Lonza Ltd. (“Complainant”), represented by Lawrence J. Crain of Greer, Burns & Crain, Ltd., Illinois, USA. Respondent is lei yang (“Respondent”), Nigeria.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lozna.org>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 18, 2020; the Forum received payment on February 18, 2020.
On February 20, 2020, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <lozna.org> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 February 21, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 12, 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@lozna.org. Also on February 21, 2020, 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 15, 2020, 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 name be transferred from Respondent to Complainant.
A. Complainant
1. Respondent’s <lozna.org> domain name is confusingly similar to Complainant’s LONZA mark.
2. Respondent does not have any rights or legitimate interests in the <lozna.org> domain name.
3. Respondent registered and uses the <lozna.org> domain name in bad faith.
B. Respondent failed to file a Response in this proceeding.
Complainant, Lonza Ltd., is a leading company operating in the pharmaceutical, biotech and specialty ingredients markets. Complainant holds a registration for the LONZA mark with the United States Patent Office (“USPTO”) (Reg. No. 956,300, registered Apr. 3, 1973).
Respondent registered the <lozna.org> domain name on February 12, 2020, and uses it to impersonate Complainant in furtherance of a fraudulent 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 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 Panel finds that Complainant has rights in the LONZA mark under Policy ¶ 4(a)(i) based upon its registration with the USPTO. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i).
Respondent’s <lozna.org> domain name is a simple misspelling of the LONZA mark. Misspelling of a complainant’s mark, by transposing letters, and adding a gTLD does not mitigate the confusing similarity between a disputed domain name and mark under Policy ¶ 4(a)(i). See Am. Online, Inc. v. David, FA 104980 (Forum Apr. 10, 2002) (“The misspelling of a famous mark does not diminish the confusingly similar nature between the marks and the disputed domain names.”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Accordingly, the Panel finds that Respondent’s <lozna.org> domain name is 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 argues that Respondent has no rights or legitimate interests in the <lozna.org> domain name. Specifically, Complainant argues Respondent is not licensed or authorized to use the LONZA mark and is not commonly known by the disputed domain name. The WHOIS information of record identifies Respondent as “lei yang.” The Panel therefore finds that Respondent is not commonly known by the disputed domain name, and thus has no rights 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.); see also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant contends that Respondent does not use the <lozna.org> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent fails to make an active use of the disputed domain name. Failure to make active use of a domain name does constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or (iii). See Michelin North America, Inc. v. Energie Media Group, FA 451882 (Forum Aug. 7, 2012). In Michelin North, the panel found that inactive use, or “passive holding,” of the disputed domain name by a respondent “permits the inference that [the respondent] lacks rights and legitimate interests in the domain names.” Complainant provides screenshots of the disputed domain name, which resolves to an inactive webpage featuring an “Error” notice. The Panel finds that this use is not a bona fide offering or good or services or a legitimate noncommercial or fair use, and thus Respondent has no rights under Policy ¶¶ 4(c)(i) or (iii).
Complainant also provides proof that that Respondent is using the disputed domain name <lozna.org> to falsely hold itself out as an employee of Complainant and send fraudulent emails to Complainant’s business partners and customers, specifically to phish for bank information. The Panel finds that this is further evidence that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶¶ 4(c)(i) and (iii). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the at-issue domain name to pose as Complainant’s CEO by means of email addresses at the confusingly similar domain name in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <lozna.org> domain name in bad faith by disrupting Complainant’s business and impersonating Complainant in an email phishing scheme, presumably for commercial gain. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (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)”); see also Monsanto Co. v. Decepticons, FA 101536 (Forum Dec. 18, 2001) (finding that the respondent's use of <monsantos.com> to misrepresent itself as the complainant and to provide misleading information to the public supported a finding of bad faith).
Complainant also asserts that Respondent fails to make an active use and is passively holding the <lozna.org> domain name. Complainant shows that the disputed domain name resolves to an inactive website. The Panel finds that Respondent’s inactive use of the <lozna.org> domain name indicates bad faith registration and use under Policy ¶ 4(a)(iii). See Marsh Supermarkets Company, LLC, formerly known as Marsh Supermarkets, Inc. v. Choi Sungyeon, FA1312001532854 (Forum Feb. 25, 2014) (“Therefore, the Panel finds that Respondent registered and is using the <marshsupermarkets.com> domain name in bad faith pursuant to Policy ¶ 4(a)(iii) because Respondent has failed to make an active use of the disputed domain name.”)
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 <lozna.org> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: March 16, 2020
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page