ARCONIC CORPORATION v. Sammi Wilhi / LNG GROUP PTY LTD
Claim Number: FA2102001930579
Complainant is ARCONIC CORPORATION (“Complainant”), represented by CORSEARCH, INC, Texas. Respondent is Sammi Wilhi / LNG GROUP PTY LTD (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <arconicusa.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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 1, 2021; the Forum received payment on February 1, 2021.
On February 1, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <arconicusa.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 February 5, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 25, 2021 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@arconicusa.com. Also on February 5, 2021, 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 2, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco, 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
Complainant contends as follows:
Complainant is a global leader in manufacturing aluminum sheet, plate, extrusions, serving primarily the ground transportation, aerospace, building and construction, industrial, and packaging end-markets.
Complainant has rights in the ARCONIC mark through Complainant’s registration of the mark with the European Union Intellectual Property Office (“EUIPO”).
Respondent’s <arconicusa.com> is identical or confusingly similar to Complainant’s ARCONIC mark as it incorporates Complainant’s entire mark and merely adds the geographic term USA and the gTLD “.com.”
Respondent lacks rights or legitimate interests in the <arconicusa.com> domain name. Respondent is not commonly known by the at-issue domain name nor has Respondent been authorized by Complainant to use the ARCONIC mark. Respondent has not used the domain name in connection with a bona fide offering of goods or services as the domain name fails to resolve to an active webpage. Furthermore, Respondent uses the domain name to send emails passing itself off as Complainant’s employees in furtherance of a phishing scheme.
Respondent registered and uses the <arconicusa.com> domain name in bad faith. Respondent has a history of adverse UDRP decisions. Additionally, Respondent uses the at-issue domain name to send emails passing itself off as Complainant’s employees in furtherance of a phishing scheme. Finally, Respondent fails to make active use of the at-issue domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in ARCONIC.
Respondent is not affiliated with Complainant and is not authorized to use the ARCONIC mark in any capacity.
The at‑issue domain name was registered after Complainant acquired trademark rights in ARCONIC.
Respondent uses the domain name to send emails passing itself off as Complainant’s employees in furtherance of fraud.
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”).
Complainant demonstrates rights in the ARCONIC mark per Policy ¶ 4(a)(i) through its registration of such mark with the EUIPO. See Lilly A/S v. yiyi chen, FA 1704586 (Forum Jan. 5, 2017) (“Until March 23, 2016, the EUIPO was known as the Office for Harmonization in the Internal Market. Registration of a mark with the EUIPO (or any other similar governmental authority) is sufficient to establish rights in the mark.”).
Further, the <arconicusa.com> domain name contains Complainant’s ARCONIC trademark followed by the geographic term “usa” with all followed by a domain name-necessary generic top-level, here “.com”. The differences between Complainant’s trademark and the at-issue domain name does nothing to distinguish the domain name from Complainant’s trademark under Policy ¶ 4(a)(i). Therefore, the Panel concludes that the <arconicusa.com> domain name is confusingly similar to Complainant’s ARCONIC trademark. See Dell Inc. v. SNAB Corporation, FA 1785051 (Forum May 30, 2018) (finding the inclusion of a geographic term did not distinguish the domain name and increased possible confusion, as “[t]he geographic term “hyderabad” is also suggestive of Complainant as Complainant has corporate offices in Hyderabad, India.”)
The Panel finds that Respondent lacks both rights and legitimate interests in respect of the <arconicusa.com> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity. Moreover, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at‑issue domain name. 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”).
The WHOIS information for the at-issue domain name identifies <arconicusa.com>’s registrant as “SAMMI WILHI / LNG GROUP PTY LTD.” The record before the Panel contains no evidence that tends to show that Respondent is commonly known by the <arconicusa.com> domain name. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). 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)”).
Although the at-issue domain name fails to address any web content, the domain name is used to host email addresses in support of a phishing scheme. In such scheme, Respondent poses as Complainant’s employees (and thus Complainant) via emails from the <arconicusa.com> domain name. The email addresses use various ARCONIC business areas in their local-part (the text in common email formatting that precedes the @ symbol) in concert with the address’ confusingly similar <arconicusa.com> domain name, i.e. <mdmnoasuppliermaintenance@arconicusa.com> and <usbuyandpaymentcentergrpnon@arconicusa.com>. The sham is further advanced by the email’s content which pretends to be from Complainant. The imposter emails are used to contact third parties associated with Complainant in an attempt to elicit private financial information and to apparently steal money from such parties. Respondent’s uses of the at-issue domain name as discussed above supports neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use of the domain name under Policy ¶ 4(c)(iii).; See 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); see also, 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).”).
Given the forgoing, Complainant satisfies its initial burden and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
The <arconicusa.com> domain name was registered and used in bad faith. As discussed in the paragraphs below without limitation, circumstances are present which compel the Panel to conclude that the domain name’s registrant acted in bad faith regarding the at-issue domain name pursuant to paragraph 4(a)(iii) of the Policy.
First and as mentioned elsewhere regarding rights and legitimate interests, the domain name was registered and used to perpetrate a phishing scheme designed to bilk third parties as well as compromise their private financial information. Such use of the at-issue domain name surely disrupts Complainant’s business and was initiated for financial gain. Using the <arconicusa.com> domain name in this manner demonstrates bad faith registration and use of the domain name pursuant to 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)”).
Moreover, Respondent has suffered prior adverse UDRP decisions thereby disclosing a pattern of bad faith domain name registration and use. Respondent’s pattern of cybersquatting suggests Respondent’s bad faith in the instant case pursuant to Policy ¶ 4(b)(ii). See Philip Morris Inc. v. r9.net, D2003-0004 (WIPO Feb. 28, 2003) (finding that the respondent’s previous registration of domain names such as <pillsbury.net>, <schlitz.net>, <biltmore.net> and <honeywell.net> and subsequent registration of the disputed <marlboro.com> domain name evidenced bad faith registration and use pursuant to Policy ¶ 4(b)(ii)); see also 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).”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <arconicusa.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: March 4, 2021
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