Lonza Ltd. v. asda qweq
Complainant is Lonza Ltd. (“Complainant”), represented by Jake M. Christensen of Greer, Burns & Crain LTD, Illinois, USA. Respondent is asda qweq (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME(s)
The domain name at issue is <lonzastore.com>, registered with Gname.com Pte. Ltd.
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 Forum electronically on June 29, 2023; Forum received payment on June 30, 2023.
On July 4, 2023, Gname.com Pte. Ltd. confirmed by e-mail to Forum that the <lonzastore.com> domain name is registered with Gname.com Pte. Ltd. and that Respondent is the current registrant of the name. Gname.com Pte. Ltd. has verified that Respondent is bound by the Gname.com Pte. Ltd. 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 July 10, 2023, Forum served the Complaint and all Annexes, including a Chinese and English Written Notice of the Complaint, setting a deadline of July 31, 2023 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@lonzastore.com. Also on July 10, 2023, the Chinese and English 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, Forum transmitted to the parties a Notification of Respondent Default.
On August 4, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDING
Notwithstanding that the Registration Agreement is written in Chinese, pursuant to UDRP Rule 11(a) the Panel finds that persuasive evidence has been adduced by Complainant to suggest the likely possibility that the Respondent is conversant and proficient in the English language and that going forward in Chinese would present an undue burden on Complainant. After considering the circumstances of the present case including Respondent’s failure to respond, the Panel concludes that the proceeding should be in English.
A. Complainant
Complainant is a leading provider of manufacturing services to the pharmaceutical, biotech and specialty ingredients markets.
Complainant has rights in the LONZA mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”).
Respondent’s <lonzastore.com> domain name is confusingly similar to Complainant’s mark because it incorporates the LONZA mark in its entirety and merely adds the term “store” and the “.com” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in the <lonzastore.com> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not authorized or licensed Respondent any rights in the LONZA mark. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the at-issue domain to host adult-oriented material.
Respondent registered and uses the <lonzastore.com> domain name in bad faith. Respondent’s domain name disrupts Complainant’s business by creating confusion as to the domain name’s source and affiliation. Respondent uses the domain name’s resolving webpage to host adult-oriented material. The domain name likely helps internet users to connect with websites that intend to install malware on the users’ computers. Additionally, Respondent registered the at-issue domain name with actual knowledge of Complainant’s rights in the LONZA mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in the LONZA mark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain name after Complainant acquired rights in the LONZA trademark.
Respondent uses the domain name to direct internet users to websites hosting adult oriented material.
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”).
The at-issue domain name is confusingly similar to a trademark in which Complainant has rights.
Complainant’s registration of the LONZA mark with the USPTO, or any other government registrar worldwide, 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)); see also, Red Hat, Inc. v. Muhammad Shahzad, FA 1787738 (Forum June 19, 2018) (“Registration of a mark with multiple trademark agencies is sufficient to demonstrate rights to a mark per Policy ¶ 4(a)(i).”).
Respondent’s <lonzastore.com> domain name incorporates Complainant’s LONZA trademark followed by the term “store” and with all followed by the “.com” top-level domain name. Respondent’s additions to Complainant’s trademark in creating the at-issue domain name fail to distinguish the domain name from Complainant’s LONZA trademark. Therefore, the Panel concludes that Respondent’s <lonzastore.com> domain name is confusingly similar to Complainant’s LONZA trademark pursuant to Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, 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 Navistar International Corporation v. N Rahmany, FA 1620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
The WHOIS information for the at-issue domain name identifies the domain name’s registrant as “asda qweq” and the record before the Panel contains no evidence tending to prove that Respondent is commonly known by the <lonzastore.com> domain name. The Panel therefore concludes that Respondent is not commonly known by <lonzastore.com> for the purposes of Policy ¶ 4(c)(ii). See Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum Sep. 4, 2018) (concluding that Respondent was not commonly known by the disputed domain name where “the WHOIS of record identifies the Respondent as “Bhawana Chandel,” and no information in the record shows that Respondent was authorized to use Complainant’s mark in any way.”).
Respondent uses the domain name to direct internet users to websites containing adult oriented material, as well as other websites. Such use indicates neither a bona fide offering of goods or services under Policy ¶ 4 (c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Dipaolo v. Genero, FA 203168 (Forum Dec. 6, 2003) (“Diversion to [adult-oriented material] is not a bona fide offering of goods or services or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶¶ 4(c)(i) and (iii).”).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name under Policy ¶4(a)(ii).
As discussed below without being exhaustive, there is evidence from which the Panel may conclude that Respondent acted in bad faith pursuant to Policy ¶ 4(a)(iii).
First as mentioned above regarding rights and interests, Respondent uses <lonzastore.com> to direct traffic to websites featuring adult oriented material, as well as other websites, presumptively for commercial gain. Respondent’s use of the domain name in this manner indicates Respondent’s bad faith registration and use of the confusingly similar <lonzastore.com> domain name under Policy ¶ 4(a)(iii). See Nat’l Ass’n of Stock Car Auto Racing, Inc. v. RMG Inc – BUY or LEASE by E-MAIL, D2001-1387 (WIPO Jan. 23, 2002) (“[I]t is now well known that [adult-oriented material providers] rely on misleading domain names to attract users by confusion, in order to generate revenue from click-through advertising, mouse-trapping, and other pernicious online marketing techniques.”); see also, Molson Canada 2005 v. JEAN LUCAS / DOMCHARME GROUP, FA 1596702 (Forum Feb. 10, 2015) (“Further, Respondent’s diversion of the domain names to adult-oriented sites is registration and use of the disputed domain names in bad faith under Policy ¶ 4(a)(iii).”).
Next, Respondent uses the at-issue domain name to connect internet users to malware laden websites. Respondent’s use of <lonzastore.com> to aid the distribution of malware further shows Respondent’s bad faith registration and use of the <lonzastore.com> domain name. See Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited, FA 1603444 (Forum Mar. 19, 2015) (“Using the disputed domain name to download malicious software into unsuspecting viewers’ computers evidences Respondent’s bad faith registration and use pursuant to Policy ¶ 4(a)(iii).”).
Moreover, Respondent’s <lonzastore.com> domain name is disruptive to Complainant’s business as it is used to deceive third parties into falsely believing there is some affiliation between Complainant’s and <lonzastore.com>. Respondent’s use of the at-issue domain name to disrupt Complainant business and ultimately exploit the confusion it created between the domain name and Complainant’s LONZA trademark shows Respondent’s bad faith registration and use of <lonzastore.com> under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv). See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract internet users to its commercial website).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <lonzastore.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: August 6, 2023
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