Huntsman International, LLC v. Paul Price
Claim Number: FA2101001927640
Complainant is Huntsman International, LLC (“Complainant”), represented by Steven M. Espenshade of Pirkey Barber PLLC, Texas, USA. Respondent is Paul Price (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <huntsrnanbuilds.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.
James Bridgeman SC as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 8, 2021; the Forum received payment on January 8, 2021.
On January 8, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <huntsrnanbuilds.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 January 11, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 1, 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@huntsrnanbuilds.com. Also on January 11, 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 February 4, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed James Bridgeman SC 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 disputed domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant claims rights in the HUNTSMAN mark based on its membership of the group of companies that own and use the registered trademarks described below and the goodwill that the group has established in the mark at common law by its use in its business that the employs approximately 9,000 associates, operates more than 70 manufacturing, research and development, and operation facilities in approximately 30 countries, and had over $6 billion in revenue in 2019.
Complainant additionally claims to have used the mark HUNTSMAN BUILDING SOLUTIONS since at least as early as May 2020, in connection with spray polyurethane foam products and services. Complainant claims that it has acquired a substantial reputation and goodwill in these marks incorporating HUNTSMAN marks which have been extensively advertised and promoted for decades and as a result, are recognized by the consuming public.
Complainant has an online presence and has adduced in evidence screenshots of its websites at <www.huntsman.com> and <www.huntsmanbuildingsolutions.com>. Also of relevance is that Complainant has registered the domain name <huntsmanbuilds.com> on June 2, 2020.
Complainant submits that the disputed domain name <huntsrnanbuilds.com> is confusingly similar to its HUNTSMAN and HUNTSMAN BUILDING SOLUTIONS marks. The disputed domain name consists of the HUNTSMAN trademark, with the letter “m” replaced by the letters “n” and “r” between the letters “s” and the “n” so that the lower-case “r” and “n” closely resemble a lower-case “m.”
Complainant submits that these changes are clearly intended to deceptively resemble the HUNTSMAN mark visually. Furthermore, the disputed domain name incorporates the descriptive term “builds” that references the building products and solutions offered by Complainant so that the disputed domain name is confusingly similar to the domain name <huntsmanbuild.com> used by Complainant for its official website and its corporate email address.
Complainant submits that Respondent has no rights or legitimate interests in the disputed domain name arguing that Respondent is not commonly known by the disputed domain name; that Complainant has not licensed or otherwise permitted Respondent to use its HUNTSMAN marks, or any other mark owned by Complainant; and furthermore that Respondent has neither used, nor made any demonstrable preparations to use, the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
Complainant alleges that the disputed domain resolves to a parking page website that displays pay-per-click links to third-party websites that are not affiliated with Complainant. A screenshot of the website at the disputed domain name is attached as an exhibit to the Complaint. Complainant submits that numerous prior panels have held that the use of a disputed domain name for a parking page featuring links to products and services unaffiliated with Complainant is not a bona fide offering of goods or services. Guess? IP Holder L.P. and Guess?, Inc. v. v. Milen Radumilo, FA 1735164 (Forum July 10, 2017) (“Complainant contends Respondent is not using the <eshop-guess.us> domain name in connection with any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent is using the domain name to resolve to a parking page populated by pay-per-click opportunities that directly compete with Complainant. Use of a domain name in which a complainant has rights to host a parking page populated by pay-per-click opportunities that directly compete with a complainant is not a bona fide offering of goods or services or a legitimate noncommercial or fair use”).
Complainant alleges that the disputed domain is being used by Respondent to create an email account to perpetrate a fraudulent phishing scheme in which Respondent has contacted Complainant’s customers by email, impersonating an employee of Complainant in order to deceive Complainant’s customer, requesting it to remit payment for future invoices to a new bank account that is almost certainly owned by the Respondent.
Complainant further alleges that to facilitate the deception, Respondent used the HUNTSMAN BUILDING SOLUTIONS trademark and logo, as well as the name and official email address of the impersonated employee of Complainant, within the body of the email or within the email signature block.
A redacted copy of the email correspondence between the Respondent and Complainant’s customer is attached as an annex to the Complaint.
Complainant submits that numerous prior Panels have repeatedly held that such fraudulent actions are not bona fide offerings of goods or services or legitimate noncommercial or fair uses. Phillips 66 Company v. Vanshita sharma / Ms, FA 1868439 (Forum November 23, 2019) (“The Domain Name has been used in a fraudulent e-mail scheme using the Complainant’s name and logo. This is deceptive and confusing and amounts to passing off. As such, it cannot amount to the bona fide offering of goods and service”).
Complainant submits that therefore, Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
Complainant also alleges that Respondent registered and is using the disputed domain name in bad faith, arguing that it is clear that Respondent knew of Complainant’s use and rights in the well-known HUNTSMAN and HUNTSMAN BUILDING SOLUTIONS marks when the disputed domain name was registered.
Complainant argues that such knowledge may be inferred from Respondent’s misrepresentation to the email recipients that Respondent is affiliated with Complainant. Additionally, Respondent’s intentional use of Complainant’s marks, company name, logo, employee name, and employee email address in its email to Complainant’s customer shows knowledge of Complainant and its business.
Complainant adds that Respondent’s use of the disputed domain name in connection with an email account for the fraudulent purposes described above and Respondent’s intention to cause confusion by impersonating Complainant is also strong evidence of bad faith registration and use.
Complainant adds that Respondent’s use of the disputed domain name that is confusingly similar to Complainant’s HUNTSMAN mark for a parking page website featuring pay-per-click links relating to the business of Complainant is strong evidence of bad faith registration and use.
In conclusion, Complainant alleges that Respondent’s registration of the disputed domain name, that incorporates an intentionally deceptive misspelling of Complainant’s famous HUNTSMAN trademark, and presents the same overall visual impression of the HUNTSMAN mark, is a typical example of typo-squatting, by which the creator of a domain name attempts to take advantage of common typing errors made by Internet users in entering into their web browsers the names of enterprises with which they wish to do business. Typo-squatting is independent evidence that Respondent lacks rights to or legitimate interests in the contested domain name, and the domain was registered and is used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant is a member of group of companies that manufactures chemical products and related services which are distinguished by trademarks marks consisting of or incorporating HUNTSMAN” and holds the following United States trademark registrations:
· United States registered trademark HUNNTSMAN (design), registration number 2,039,875, registered on February 25, 1997 on the Principal Register for goods in international class 1;
· United States registered trademark HUNTSMAN (design) registration number 2,124,154, registered on the Principal Register on December 23, 1997 for goods in international class 1;
· United States registered trademark HUSTSMAN (design), registration number 2,231,021, registered on the Principal Register on March 9, 1999 for goods in international class 1;
· United States registered trademark HUNTSMAN (design), registration number 2,369,935, registered on the Principal Register on July 25, 2000 for goods in international class 1;
· United States registered trademark HUNTSMAN (design), registration number 4,095,872, registered on the Principal Register on February 7, 2012 for goods in international class 1;
· United States registered trademark HUNTSMAN (design), registration number 5,878,554, registered on the Principal Register on October 8, 2019 for goods in international classes 9, 16, and 17.
The disputed domain name was registered on January 3, 2021. It resolves to a parking page with pay-per-click links and has been used as an email address to impersonate Complainant.
There is no information available about Respondent except for that provided in the Complaint, the Registrar’s WhoIs and the information provided by the Registrar in response to the request by the Forum for verification of the registration details of the disputed domain name.
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 has adduced convincing, uncontested evidence of its rights in the HUNTSMAN mark though the United States trademark registrations held by its affiliated company within its group. Additionally, Complainant has shown that it has accrued rights at common law by its use of the HUNTSMAN BUILDING SOLUTIONS on its website at <www.huntsmanbuildingsolutions.com>
The disputed domain name <huntsrnanbuilds.com> is a clear example of typosquatting. The first element consists of the HUNTSMAN trademark, with the letter “m” replaced by the letters “n” and “r” to create the impression of a lower-case “m”. The second element “builds” is generic and was obviously chosen as a reference to Complainant’s building products or “building solutions” as they are described. The third element is the generic Top-Level Domain extension <.com> which may be ignored for the purposes of comparison as it would be perceived to be a necessary technical requirement for the domain name.
This Panel finds therefore that the disputed domain name is confusingly similar to the HUNTSMAN trademark in which Complainant has rights. Complainant has therefore succeeded in the first element of the test in Policy ¶ 4(a)(i)
Complainant has made out an uncontested prima facie case that Respondent has no rights or legitimate interests in the disputed domain name arguing that
· Respondent is not commonly known by the disputed domain name;
· Complainant has not licensed or otherwise permitted Respondent to use its HUNTSMAN marks, or any other mark owned by Complainant;
· Respondent has neither used, nor made any demonstrable preparations to use, the disputed domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
· the disputed domain resolves to a parking page website that displays pay-per-click links to third-party websites that are not affiliated with Complainant;
· the screenshot of the website at the disputed domain name is attached, exhibited with the Complaint is evidence of such use;
· the disputed domain is being used by Respondent to create an email account that incorporates the disputed domain name, which has been used in a fraudulent phishing scheme to send emails to one of Complainant’s customers, impersonating an employee of Complainant in order to deceive Complainant’s customers to remit payment for future invoices to a new bank account;
· to facilitate the deception, Respondent used the HUNTSMAN BUILDING SOLUTIONS trademark and logo, as well as the name and official email address of the impersonated employee of Complainant, within the body of the email or within the email signature block;
· these allegations of phishing are evidenced by a copy of the email correspondence between the Respondent and Complainant’s customer which is attached as an annex to the Complaint.
It is well established that once a complainant makes out such a prima facie case, the burden of production shifts to Respondent to prove his/her/its rights and legitimate interests in the disputed domain name. Respondent has failed to file any Response to discharge the burden.
This Panel must find therefore that Respondent has no rights or legitimate interests in the disputed domain name. Complainant has therefore succeeded in the second element of the test in Policy ¶ 4(a)(ii) also.
Complainant has shown that it has an established Internet presence, with websites at <www.huntsman.com>, www.huntsmanbuildingsolutions.com and < www.huntsmanbuilds.com>.
Given the similarity of the disputed domain name to Complainant’s mark and in particular its <huntsmanbuilds.com> domain name, this Panel has no hesitation finding that the registrant of the disputed domain was aware of Complainant, its name and mark when the disputed domain name was chosen and registered in bad faith.
On the balance of probabilities the disputed domain name was chosen and registered to take predatory advantage of Complainant, and its goodwill in the HUNTSMAN mark in order to divert Internet traffic and create confusion in the minds of misdirected visitors landing on Respondent’s website and furthermore to facilitate the impersonation of Complainant in email correspondence.
The uncontested evidence adduced clearly shows that Respondent is using the disputed domain name in bad faith to divert Internet traffic intended for Complainant to a website from which Respondent is generating pay-per-click revenue.
Additionally the evidence shows that on the balance of probabilities, the disputed domain name has been used as an email address in furtherance of a phishing scheme in which Respondent is impersonating Complainant in order to mislead and confuse Complainant’s customers.
As this Panel has found that the disputed domain name was registered and is being used in bad faith, Complainant has therefore succeeded in the third element of the test in Policy ¶ 4(a)(iii), and Complainant is entitled to the reliefs requested in this Complaint.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <huntsrnanbuilds.com> domain name be TRANSFERRED from Respondent to Complainant.
James Bridgeman SC
Panelist
Dated: February 5, 2021
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page