DECISION

 

Huntsman International LLC v. win wonderland

Claim Number: FA2309002063697

 

PARTIES

Complainant is Huntsman International LLC ("Complainant"), represented by John C. Cain of Munck Wilson Mandala, LLP, Texas, USA. Respondent is win wonderland ("Respondent"), Michigan, USA.

 

REGISTRAR AND DISPUTED DOMAIN NAMES 

The domain names at issue are <huntrnanbuilds.com> and <huntmanbuilds.com>, registered with NameCheap, Inc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on September 27, 2023; Forum received payment on September 27, 2023.

 

On October 3, 2023, NameCheap, Inc. confirmed by e-mail to Forum that the <huntrnanbuilds.com> and <huntmanbuilds.com> domain names are registered with NameCheap, Inc. and that Respondent is the current registrant of the names. 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 October 5, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 25, 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@huntrnanbuilds.com and postmaster@huntmanbuilds.com. Also on October 5, 2023, 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, Forum transmitted to the parties a Notification of Respondent Default.

 

On October 26, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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.

 

RELIEF SOUGHT

Complainant requests that the domain names be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it and its subsidiary companies are associated with a wide range of innovative products and solutions in the chemicals industry. Complainant provides products to a diverse range of consumers and industrial end users, including but not limited to insulation, adhesives, consumer products, packaging, power generation, oil and gas, fuels, lubricants, boating, aerospace, automotive, transportation, building, construction, energy, and footwear industry consumers. Complainant has been a global leader in the chemicals industry for over 50 years. Headquartered in The Woodlands, Texas, Complainant employs over 7,000 people and had revenues in 2022 of over $8 billion. Complainant owns and uses the domain name <huntsmanbuilds.com> as an email domain for its employees. Complainant asserts rights in the mark HUNTSMAN through its registration in the United States in 2020. The mark is registered elsewhere around the world.

 

Complainant alleges that the disputed domain names are identical or confusingly similar to its HUNTSMAN mark as they consist of misspellings of the mark (the letter "s" is omitted and the letter "m" is replaced with the visually similar combination "rn"), merely adding the generic/descriptive term "builds" together with the ".com" generic top-level domain ("gTLD"). Complainant cites UDRP precedents to support its position.

 

According to Complainant, Respondent lacks rights or legitimate interests in the disputed domain names. Respondent is not commonly known by the disputed domain names, nor has Complainant authorized or licensed Respondent to use its mark in any way. Respondent is not using the disputed domain names for a bona fide offering of goods or services, nor for a legitimate noncommercial or fair use. Instead, the disputed domain names do not resolve to an active website, and Respondent used the disputed domain names in emails that impersonated Complainant's actual employees in an attempt to misdirect payment for several customer invoices to its own bank and payment accounts. The signature block of the fraudulent emails mimics the signature block of Complainant's legitimate emails and displays Complainant's actual physical address and website URL. Complainant cites UDRP precedents to support its position.

 

According to Complainant, Respondent registered and uses the disputed domain names in bad faith. The disputed domain names were used in furtherance of a fraudulent email phishing scheme. Respondent registered the disputed domain names with actual knowledge of Complainant's rights in its mark. Respondent used a privacy service. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant owns the mark HUNTSMAN and uses it to provide products and solutions in the chemicals industry.

 

Complainant's registration of its mark dates back to 2020.

 

The disputed domain names were registered in 2023.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The disputed domain names do not resolve to an active website and they were used in furtherance of a fraudulent email phishing scheme. The signature block of the fraudulent emails mimics the signature block of Complainant's legitimate emails and displays Complainant's actual physical address and website URL.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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 disputed domain names consist of misspellings of Complainant's HUNTSMAN mark (the letter "s" is omitted and the letter "m" is replaced with the visually similar combination "rn"), merely adding the generic/descriptive term "builds" together with the ".com" generic top-level domain ("gTLD"). Under Policy ¶ 4(a)(i), misspelling a mark, adding a gTLD and/or generic terms is generally insufficient in differentiating a disputed domain name from the mark it incorporates. See Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) ("The [<morganstonley.com> and <morganstainley.com>] Domain Names are confusingly similar to Complainant's marks, as they fully incorporate the MORGAN STANLEY mark, varying it only by subtle misspellings, omitting a space between the words, and adding the generic top-level domain ("gTLD") '.com.'"); see also Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018) ("Where a relevant trademark is recognisable within a disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) does not prevent a finding of confusing similarity under the first element."); see also Vanguard Group Inc. v. Proven Fin. Solutions, FA 572937 (Forum Nov. 18, 2005) (holding that the addition of both the word "advisors" and the gTLD ".com" did not sufficiently alter the disputed domain name to negate a finding of confusing similarity under Policy ¶ 4(a)(i)); see also CDW LLC v. Netzer, FA 1782406 (Forum May 15, 2018) (finding the domain name <cdvv.biz> confusingly similar to complainant's CDW mark due, in part, to the fact that the double "v" was designed to mimic the letter "w"); Emerson Electric Co. v. Golden Humble, FA 1787128 (Forum June 11, 2018) (finding the domain name <ernmersson.com> confusingly similar to complainant's EMERSON mark due, in part, to the fact that the respondent replaced the letter "m" with the visually similar combination of the letters "r" and "n"); The Burton Firm, P.A. v. Dre, FA 1779192 (Forum April 25, 2018) (finding the domain name <theburtonfirrn.com> confusingly similar to the complainant's THE BURTON FIRM mark due, in part, to the fact that respondent replaced the letter "m" with the visually similar combination of the letters "r" and "n"). Therefore the Panel finds that the disputed domain names are confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its HUNTSMAN mark. Respondent is not commonly known by the disputed domain names: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA 1613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists "Dale Anderson" as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)). Here, the WHOIS information of record identifies the registrant as "win wonderland". The Panel therefore finds that Respondent is not commonly known by the disputed domain names under Policy ¶ 4(c)(ii).

 

The disputed domain names do not resolve to an active web site. Prior panels have held that a respondent's failure to make any active use of a domain name does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (finding that the respondent had no rights or legitimate interests in a domain name under either Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii) where it failed to make any active use of the domain name). For this reason, the Panel finds that Respondent is not using the disputed domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or Policy ¶ 4(c)(iii).

 

Respondent has used the disputed domain names in emails with requests for payment, falsely identifying itself as an employee of Complainant, including by using the names of actual employees. Previous panels have determined that a respondent's attempt to pass itself off as a complainant, or a respondent's attempt to phish, is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA 1600534 (Forum February 26, 2015) ("The Panel agrees that the respondent's apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii)."); see also Blackstone TM L.L.C. v. Mita Irelant Ltd., FA 1314998 (Forum Apr. 30, 2010) ("The Panel finds that Respondent's attempt to "phish" for users' personal information is neither a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)."). Thus the Panel finds that Respondent fails to use the disputed domain names to make a bona fide offering of goods and services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).

 

For all the above reasons, the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain names.

 

Registration and Use in Bad Faith

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 names.

 

Indeed, as already noted, Respondent uses the disputed domain names in furtherance of a fraudulent email phishing scheme. Previous panels have determined that a respondent's attempt to pass itself off as a complainant and to induce fund transfers constitute bad faith use in the sense of the Policy. See National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum Sept. 22, 2014) (finding bad faith where respondent fraudulently attempted to induce wire transfers by sending e-mails purporting to be from complainant's President and CEO); see also Capital One Financial Corporation and Capital One Bank v. Austin Howel, FA 289304 (Forum Aug. 11, 2004) (finding bad faith where respondent used complainant's mark to fraudulently induce transfer of credit and personal identification information). Thus the Panel finds that Respondent registered and uses the disputed domain names in bad faith under Policy ¶ 4(a)(iii).

 

Further, Respondent registered the disputed domain names with actual knowledge of Complainant's mark: the signature block of the fraudulent emails mimics the signature block of Complainant's legitimate emails and displays Complainant's actual physical address and website URL. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) ("The Panel notes that although the UDRP does not recognize 'constructive notice' as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it."); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain names and that this constitutes bad faith under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <huntrnanbuilds.com> and <huntmanbuilds.com> domain names be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: October 26, 2023