Lonza Ltd. v. Manchester Accounts Receivable Ch -
Claim Number: FA1810001812238
Complainant is Lonza Ltd. (“Complainant”), represented by Tanja Proehl of Greer, Burns & Crain, Ltd., Illinois, USA. Respondent is Manchester Accounts Receivable Ch - (“Respondent”), Tennessee, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <lonza.org>, registered with Wild West Domains, LLC.
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 the Forum electronically on October 17, 2018; the Forum received payment on October 17, 2018.
On October 19, 2018, Wild West Domains, LLC confirmed by e-mail to the Forum that the <lonza.org> domain name is registered with Wild West Domains, LLC and that Respondent is the current registrant of the name. Wild West Domains, LLC has verified that Respondent is bound by the Wild West Domains, 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 October 23, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 13, 2018 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@lonza.org. Also on October 23, 2018, 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 November 14, 2018 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it is a leading company operating in the pharmaceutical, biotech and specialty ingredients markets. At least as early as 1955, Complainant adopted the trademark LONZA for pharmaceutical and medicinal preparations in the United States. Complainant has rights in the LONZA mark through its registration of the mark in the United States in 1973.
Complainant alleges that the disputed domain name is identical to its mark as it incorporates Complainant’s mark in its entirety.
According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized, licensed, or otherwise permitted Respondent to use the mark. Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. Rather, Respondent uses the domain name to impersonate Complainant by sending consumers fraudulent e-mails designed to redirect their payments to Respondent’s illicit bank account rather than Complainant’s. In addition, the disputed domain name does not resolve to an active website.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent’s use of the domain name, used in connection with a fraudulent e-mail scheme designed to impersonate Complainant for the purpose of financial gain, disrupts Complainant’s business by creating a likelihood of confusion with the source of the domain name and Complainant’s mark. Further, Respondent fails to make an active use of the resolving webpage associated with the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the mark LONZA and uses it to market pharmaceutical products.
Complainant’s rights in its mark date back to at least 1973.
The disputed domain name was registered in 2018.
Complainant has not licensed or otherwise authorized Respondent to use its marks.
Respondent uses the disputed domain name to pass off as Complainant to send fraudulent e-mails.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The disputed domain name is identical to Complainant’s mark as it incorporates Complainant’s mark in its entirety and merely adds the “.org” generic top-level domain (“gTLD”). Panels have found that similar changes in a registered mark have failed to sufficiently distinguish a domain name for the purposes of Policy ¶ 4(a)(i). See Marquette Golf Club v. Al Perkins, FA 1738263 (Forum July 27, 2017) (“When a respondent’s domain name incorporates a mark in its entirety and merely adds a generic top-level domain (gTLD), “.com”, then the Panel may find that the disputed domain name is identical to Complainant’s mark.”). The Panel therefore finds that the <lonza.org> domain name is identical to Complainant’s LONZA mark under Policy ¶ 4(a)(i).
Complainant has not authorized Respondent to use its mark in any way. Respondent is not commonly known by the disputed domain name: where a response is lacking, relevant information includes the WHOIS and any other assertions by a complainant regarding the nature of its relationship with a respondent. See Braun Corp. v. Loney, FA 699652 (Forum July 7, 2006) (concluding that the respondent was not commonly known by the disputed domain names where the WHOIS information, as well as all other information in the record, gave no indication that the respondent was commonly known by the domain names, and the complainant had not authorized the respondent to register a domain name containing its registered mark). Here, the WHOIS identifies “Manchester Accounts Receivable Ch -” as the registrant. Accordingly, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Respondent uses the disputed domain name to impersonate Complainant by sending consumers fraudulent e-mails designed to redirect their payments to Respondent’s illicit bank account rather than Complainant’s. Specifically, Complainant provides a copy of an e-mail chain where Respondent uses the disputed domain name; the e-mails request consumers to redirect their payments to an account in Turkey due to a “change in company policy.” Complainant also provides a copy of the letter Respondent attaches to the emails, which gives consumers a bank account in Bulgaria for consumers to effectuate a transfer. Such fraudulent e-mails evince a failure to make a bona fide offering of goods or services or legitimate noncommercial or fair use. See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). Accordingly, the Panel finds that Respondent fails to make a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii) analysis. And 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 for a fraudulent e-mail scheme designed to impersonate Complainant for the purpose of financial gain. This disrupts Complainant’s business by creating a likelihood of confusion with the source of the domain name and Complainant’s mark. Using a disputed domain name that disrupts a complainant’s business and trades upon the goodwill of a complainant for commercial gain can evince bad faith under Policy ¶¶ 4(b)(iii) & (iv). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); see also 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). Accordingly, the Panel finds that Respondent disrupts Complainant’s business and attempts to commercially benefit off Complainant’s mark in bad faith per Policy ¶¶ 4(b)(iii) & (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lonza.org> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 14, 2018
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