Univar Solutions, Inc. v. David
Claim Number: FA2002001881903
Complainant is Univar Solutions, Inc. (“Complainant”), represented by Christopher M. Dolan of Barnes & Thornburg LLP, Illinois, United States. Respondent is David (“Respondent”), Illinois, United States.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <univarinc.net> (the Domain Name’), registered with Tucows Domains Inc.
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 February 4, 2020; the Forum received payment on February 4, 2020.
On February 04, 2020, Tucows Domains Inc. confirmed by e-mail to the Forum that the <univarinc.net> domain name is registered with Tucows Domains Inc. and that Respondent is the current registrant of the name. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains 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, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 25, 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@univarinc.net. Also on February 5, 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 February 27, 2020 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 summarised as follows:
The Complainant is the owner of the mark UNIVAR, registered, inter alia, in the USA for chemicals with first use recorded as 1974.
The Domain Name registered in 2019 is confusingly similar to the Complainant’s mark adding only the generic term ‘inc’ and the gTLD “.net.”
The Respondent does not have any rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name has been attached to a holding page inviting Internet users to use web site building services, but has been used to send fraudulent e mails using the name of the Complainant’s CEO trying to obtain chemicals from the Complainant’s suppliers with fraudulent credit card numbers. False details similar to those of the Complainant have been supplied to the service provider used to register the Domain Name and a privacy service has been used. This cannot be a bona fide offering of goods or services. It shows that the Respondent had actual knowledge of the Complainant and its rights, business and services and is registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the mark UNIVAR, registered, inter alia, in the USA for chemicals with first use recorded as 1974.
The Domain Name registered in 2019 has been attached to a holding page offering web site building services, but has been used for fraudulent e mails using the name of the Complainant’s CEO to try to obtain chemicals from the Complainant’s suppliers using fraudulent credit card numbers.
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
The Domain Name in this Complaint combines the Complainant’s UNIVAR mark (registered in the USA for chemical related goods and services with first use recorded as 1974), the generic company designation ‘inc’ and the gTLD “.net.”
The addition of a generic term and a gTLD does not negate confusing similarity between a domain name and a trade mark contained within it. See Wiluna Holdings LLC v Edna Sherman, FA 1652781 (Forum Jan 22, 2016)(Finding the addition of a generic term and gTLD insufficient to distinguish a disputed domain name from a mark under Policy 4(a)(i).).
Accordingly, the Panel finds that the Domain Name is confusingly similar to a mark in which the Complainant has rights for the purpose of the Policy.
Rights or Legitimate Interests
The Complainant has not authorised the use of its mark. The Respondent has not answered this Complaint and there is no evidence or reason to suggest the Respondent is, in fact, commonly known by the Domain Name.
The Domain Name has been used in a fraudulent email scheme using the name of the Complainant and the name of its CEO. This is deceptive and confusing and amounts to passing off. As such it cannot amount to the bona fide offering of goods and services or a noncommercial legitimate or fair use. See Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”).
Nor is using the Domain Name as a holding page to offer web site building services a bona fide offering of goods or services or a legitimate noncommercial or fair use. Dell Inc. v. link growth / Digital Marketing, FA 1785283 (Forum June 7, 2018) (“Respondent’s domain names currently display template websites lacking any substantive content. The Panel finds that Respondent has does not have rights or legitimate interests with respect of the domain name per Policy 4(c)(i) or (iii).”).
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
Impersonating a complainant by use of the complainant’s mark in a fraudulent e mail scam is disruptive and evinces bad faith registration and use. See Microsoft Corporation v Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr 4 2016) (finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy 4(b)(iii). )
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under para 4(b)(iii). There is no need to consider any additional grounds of bad faith.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <univarinc.net> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 27, 2020
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