Huntsman International, LLC v. Tony Carmean
Claim Number: FA2011001920665
Complainant is Huntsman International, LLC (“Complainant”), represented by Steven M. Espenshade of Pirkey Barber PLLC, Texas, USA. Respondent is Tony Carmean (“Respondent”), California, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <huntmans.com>, 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 13, 2020; the Forum received payment on November 13, 2020.
On November 16, 2020, Wild West Domains, LLC confirmed by e-mail to the Forum that the <huntmans.com> 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 November 17, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of December 7, 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@huntmans.com. Also on November 17, 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.
A timely Response was received and determined to be complete on November 17, 2020.
On November 20, 2020, 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.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant contends as follows:
Complainant is a global developer and manufacturer of various products and chemicals in a variety of industries.
Complainant has rights in the HUNTSMAN mark through its registrations with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <huntmans.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety, removes the “s” from the middle and adds an “s” to the end of the mark, as well as the the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <huntmans.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its HUNTSMAN mark in the at-issue domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead inactively holds the at-issue domain name’s resolving website and uses its address to pass off as Complainant in fraudulent phishing emails.
Respondent registered and uses the <huntmans.com> domain name in bad faith. Respondent disrupts Complainant’s business for commercial gain by using the at-issue domain name to pass off as Complainant in furtherance of a phishing scheme. Respondent registered the domain name with actual knowledge of Complainant’s rights in the HUNTSMAN mark. Respondent inactively holds the disputed domain name’s resolving website. Respondent typosquats with the disputed domain name.
B. Respondent
The dispute resolution provider received multiple email responses from Respondent. There, Respondent claims to know nothing about registering the at-issue domain name, or any claims laid out by Complainant in the Complaint.
Complainant has trademark rights in HUNTSMAN.
Respondent is not affiliated with Complainant and is not authorized to use the HUNTSMAN mark in any capacity.
The at‑issue domain name was registered after Complainant acquired trademark rights in HUNTSMAN.
The at-issue domain name was used to pass off email as being from Complainant 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.
Respondent takes the position that it is not the real party interest and knows nothing about the domain name, but offers no evidence or elaboration in support of its position. Respondent failed to substantively respond regarding Complainant’s rights in a mark or the domain name’s confusingly similarity to the at-issue domain name and Complainant’s trademark. However based on the record, the at-issue domain name is nevertheless confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the HUNTSMAN mark with the USPTO sufficiently demonstrates Complainant’s rights in a mark under Policy ¶ 4(a)(i). 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)).
Further, the <huntmans.com> domain name contains a misspelled version of Complainant’s HUNTSMAN trademark wherein the mark’s “s” is moved to the end of the mark; the misspelling is followed by a domain name-necessary generic top-level, here “.com”. The slight 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 <huntmans.com> domain name is confusingly similar to Complainant’s HUNTSMAN trademark. See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”).
The Panel finds that Respondent lacks both rights and legitimate interests in respect of the <huntmans.com> domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and effectively admits to having no interest in the domain name. 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.
As mentioned elsewhere, Respondent baldly claims that it knows nothing about the at-issue domain name and offers no support for having rights or legitimate interest in the <huntmans.com> domain name. If Respondent knows nothing about the domain name and its registration then Respondent must be the victim of identity theft. It follows that if the nominal Respondent did not in fact register the domain name, as Respondent appears to claim, then it is axiomatic that Respondent has no rights or interest in the domain name under Policy ¶ 4(a)(i). See General Steel Domestic Sales, LLC d/b/a General Steel Corporation and Anthem Steel Corp., LLC d/b/a Anthem Steel Corporation v. Rodney Chamness, Esq. / ICON Domains, LLC, FA1636155 (Forum Oct. 15, 2015) (finding that a respondent who claims his identity was stolen to register an at-issue domain name has no rights to such domain name).
Further, the WHOIS information for the at-issue domain name identifies <huntmans.com>’s registrant as “Tony Carmean.” The record before the Panel contains no evidence that tends to show that Respondent is commonly known by the <huntmans.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 was used to host email addresses in support of a phishing scheme. In such scheme, Respondent (or someone passing itself off to be Respondent) poses as Complainant via email from the <huntmans.com> domain name. The email addresses use the real name of various HUNTSMAN employees in their local-part (the text in common email formatting that precedes the @ symbol) in concert with the address’ confusingly similar <huntmans.com> domain name. 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 regarding payment of outstanding invoices. In the disguised email dialog with Complainant, Complainant’s customer are instructed to remit payment allegedly due Complainant to an account unaffiliated with Complainant. In furtherance of the ruse Complainant’s logo, slogan, and company name are prominently featured in the fraudulent instructions. The uses of the at-issue domain name 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 <huntmans.com> domain name was registered and used in bad faith. As discussed in the paragraphs below without limitation, circumstance 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. The Panel again notes that while the nominal Respondent denies any knowledge about the domain name, Respondent has not presented any evidence supporting its position. Additionally, the determination of the named respondent’s identity in this proceeding is based on the name of the “single person or entity listed in the WHOIS registration information at the time of [the proceeding’s] commencement” per Forum Supplemental Rule 1(d), whereas the underlying propriety of a domain name’s registration record is generally not a matter for review in this forum and needs to be ultimately resolved between the nominal domain name registrant and the domain name registrar of record.
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. Such use of the domain name surely disrupts Complainant’s business and was initiated for financial gain. Using the <huntmans.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, the domain name shows typosquatting on its face. Typosquatting is a practice whereby a domain name registrant deliberately introduces typographical errors or misspellings into a trademark or perhaps into a domain name or other mark related to or sponsored by the target trademark holder and then registers the resulting string in a domain name. The domain name registrant hopes that internet users will: 1) inadvertently type the malformed string when searching for content related to the domain name’s target trademark and/or, 2) in viewing the domain name will confuse the domain name with its target trademark. The later appears to be the case here. The registrant then may use the confusion to inappropriately capitalize on the target trademark’s goodwill. The <huntmans.com> domain name is similar in sight and sound to Complainant’s trademark and to Complainant’s actual domain name and is used in furtherance of an email based fraud. Typosquatting, in itself, indicates bad faith under Policy ¶ 4(a)(iii). See Computerized Sec. Sys., Inc. v. Hu, FA 157321 (Forum June 23, 2003) (finding that the respondent engaged in typosquatting, which is evidence of bad faith registration and use under Policy ¶ 4(a)(iii)).
Finally, the <huntmans.com> domain name was registered and used knowing that Complainant had trademark rights in HUNTSMAN. Such prior knowledge is evident from the notoriety of Complainant’s trademark, from the overt misspelling of the HUNTSMAN mark in the at-issue domain name, and from the use of the at-issue domain name to steal Complainant’s identity to perpetrate fraud as discussed elsewhere herein. Therefore, the Panel finds that the <huntmans.com> domain name was intentionally registered to improperly exploit its trademark value. Prior knowledge of Complainant's trademark demonstrates that the domain name was registered and used in bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"); see also Finex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <huntmans.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: November 23, 2020
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