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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

LANXESS Deutschland GmbH v. Abay Chidi

Case No. D2020-2324

1. The Parties

The Complainant is LANXESS Deutschland GmbH, Germany, represented by Wolpert Rechtsanwaelte, Germany.

The Respondent is Abay Chidi, Indonesia.

2. The Domain Name and Registrar

The disputed domain name <lenxess.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 7, 2020. On September 7, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 8, 2020, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.

The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).

In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 17, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 7, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 8, 2020.

The Center appointed Peter Burgstaller as the sole panelist in this matter on October 23, 2020. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.

4. Factual Background

The Complainant is a leading specialty chemicals company with sales of EUR 6.8 billion in 2019. The company currently has about 14,300 employees in 33 countries.

The Complainant is the owner of the European Union registered trademarks LANXESS (word), registration No. 3696581, registered on June 27, 2005 as well as registration No. 6596514, registered on February 13, 2009.

The disputed domain name was registered on March 5, 2020.

The Respondent used the disputed domain name as an email address together with names of the Complainant’s employees demanding payments from customers of the Complainant.

5. Parties’ Contentions

A. Complainant

The Complainant’s core business is the development, manufacturing and marketing of chemical intermediates, additives, specialty chemicals and plastics.

The Complainant is owner of the registered European Union trademarks LANXESS. LANXESS is moreover the characterizing part of the Complainant’s business name.

The disputed domain name is confusingly similar to the Complainant’s trademark rights in LANXESS and its business name.

The Respondent has no rights or legitimate interests in respect of the disputed domain name and has registered and used the disputed domain name in bad faith. In fact, the Respondent used the disputed domain name as an email address together with names of the Complainant’s employees fraudulently asking customers of the Complainant to transfer money to the bank account of the Respondent.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 4(a) of the Policy, the Complainant must prove that

(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;

(ii) the Respondent has no rights or legitimate interests with respect to the disputed domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel finds that the disputed domain name <lenxess.com> is confusingly similar to the Complainant’s registered distinctive mark LANXESS. The disputed domain name consists of a common, obvious, or intentional misspelling of the Complainant’s trademark – instead of an “a” an “e”. Such misspellings do not prevent a finding of confusing similarity (see section 1.9 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)).

Finally, suffixes such as a generic Top-Level Domain (“gTLD”) are viewed as a standard registration requirement and as such are disregarded under the first element confusing similarity test (see section 1.11 WIPO Overview 3.0); therefore, gTLD cannot typically negate confusing similarity where it otherwise exists, as it does in the present case.

The Panel therefore finds that the Complainant has satisfied paragraph 4(a)(i) of the Policy.

B. Rights or Legitimate Interests

While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element (see section 2.1 of the WIPO Overview 3.0).

In the present case the Respondent failed to submit a Response. Considering all of the evidence in the Complaint (especially with regard to the annexes presented by the Complainant) and the Complainant’s contentions that the Respondent has no rights or legitimate interests in the disputed domain name, that the Respondent has no connection or affiliation with the Complainant, and the Respondent has not received any license or consent, express or implied, to use the Complainant’s trademarks LANXESS in a domain name or in any other manner, lead the Panel to the conclusion that the Complainant has made out an undisputed prima facie case so that the conditions set out in paragraph 4(a)(ii) of the Policy have been met by the Complainant.

The Panel therefore finds that the Complainant has satisfied paragraph 4(a)(ii) of the Policy.

C. Registered and Used in Bad Faith

As stated in many decisions rendered under the Policy (e.g., Robert Ellenbogen v. Mike Pearson, WIPO Case No. D2000-0001), both conditions, registration and use in bad faith, must be demonstrated; consequently, the Complainant must show that:

- the disputed domain name was registered by the Respondent in bad faith, and

- the disputed domain name is being used by the Respondent in bad faith.

(a) It is well-settled case law that the practice of typosquatting may in itself be evidence of a bad faith registration of a domain name (see, e.g., Longs Drug Stores California, Inc. v. Shep Dog, WIPO Case No. D2004-1069; Wal-Mart Stores, Inc. v. Longo, WIPO Case No. D2014-0816).

In the present case the Respondent substituted the second letter “a” of the Complainant’s registered trademark with the letter “e” – this behavior constitutes evidence of bad faith (see also section 1.9 WIPO Overview 3.0).

(b) Panels have held that the use of a domain name for purposes other than to host a website may constitute bad faith as well. Such purposes include sending email, phishing or identity theft. Many such cases involve the respondent’s use of the domain name to send deceptive emails, e.g., to solicit payment of fraudulent invoices by the complainant’s actual or prospective customers (see section 3.4 of the WIPO Overview 3.0).

Following the evidence put forward by the Complainant, the Respondent used the disputed domain name as an email address together with names of the Complainant’s employees to demand payment from the Complainant’s customers with a fraudulent intention.

The evidence and documents produced and put forward by the Complainant together with the fact that the Respondent has failed to present any evidence of any good faith registration and use with regard to the disputed domain name make this case pretty clear: The disputed domain name was registered and is being used by the Respondent with fraudulent intent and in bad faith under paragraph 4(a)(iii) of the Policy.

7. Decision

For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <lenxess.com> be transferred to the Complainant.

Peter Burgstaller
Sole Panelist
Date: November 6, 2020

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