ConAgra Foods RDM, Inc. v. Edgar John Ngu / Edgar John Ngu John Ngu
Claim Number: FA1908001856991
Complainant is ConAgra Foods RDM, Inc. (“Complainant”), represented by Jasmine Davis of Conagra Brands, Inc., Illinois, USA. Respondent is Edgar John Ngu / Edgar John Ngu John Ngu (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <conagrabrands-us.com>, registered with Hostinger, UAB.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 13, 2019; the Forum received payment on August 13, 2019.
On August 19, 2019, Hostinger, UAB confirmed by e-mail to the Forum that the <conagrabrands-us.com> domain name is registered with Hostinger, UAB and that Respondent is the current registrant of the name. Hostinger, UAB has verified that Respondent is bound by the Hostinger, UAB 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 August 27, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 16, 2019 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@conagrabrands-us.com. Also on August 27, 2019, 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 September 17, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 a response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant operates in the food products industry.
Complainant holds a registration for the CONAGRA FOODS trademark, which is on file with the United States Patent and Trademark Office (“USPTO”) as Registry No. 2,889,507, registered September 28, 2004, and renewed as of October 11, 2014.
Respondent registered the domain name <conagrabrands-us.com> on March 6, 2019.
The domain name is confusingly similar to Complainant’s CONAGRA FOODS trademark.
Respondent has not been commonly known by the domain name.
Respondent has not been licensed or otherwise permitted by Complainant to use its CONAGRA FOODS mark.
Respondent is not using the domain name in connection with either a bona fide offering of goods or services or a legitimate noncommercial or fair use.
Rather, Respondent uses the domain name to operate a fraudulent “phishing” scheme via an email address derived from it.
Respondents has no rights to or legitimate interests in the domain name.
Respondent’s use of the domain name disrupts Complainants business.
The same use of the domain name is an attempt to deceive and attract internet users for Respondent’s commercial gain.
Respondent knew of Complainant’s rights in its CONAGRA FOODS mark when it registered the domain name.
Respondent both registered and uses the domain name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain name; and
(3) the same domain name has been registered and is being used by Respondent in bad faith.
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable claims and inferences set out in the Complaint unless the supporting evidence is manifestly contradictory. See, for example, Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). But see 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 rights in the CONAGRA FOODS trademark sufficient for purposes of Policy ¶ 4(a)(i) by reason of its registration of the mark with a national trademark authority, the USPTO. See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum December 30, 2018):
Complainant’s ownership of a USPTO registration for … [its mark] … demonstrate[s] its rights in such mark for the purposes of Policy ¶ 4(a)(i).
This is true without regard to whether Complainant’s rights in its mark arise from registration of the mark in a jurisdiction (here the United States) other than that in which Respondent resides or does business (here Cameroon). See, for example, W.W. Grainger, Inc. v. Above.com Domain Privacy, FA 1334458 (Forum August 24, 2010):
[T]he Panel finds that USPTO registration is sufficient to establish these [Policy ¶ 4(a)(i)] rights even when Respondent lives or operates in a different country.
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s <conagrabrands-us.com> domain name is confusingly similar to Complainant’s CONAGRA FOODS trademark. The domain name contains the central feature of the mark, CONAGRA, absent only the generic term “FOODS,” and merely adds a hyphen, the country code “us” and the generic term “brands,” which relates to Complainant’s business, plus the generic Top Level Domain (“gTLD”) “.com.” These alterations of the mark, made in forming the domain name, do not save it from the realm of confusing similarity under the standards of the Policy. See Bloomberg Finance L.P. v. Nexperian Holding Limited, FA 1782013 (Forum June 4, 2018):
Where a relevant trademark is recognizable 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 Health Devices Corp. v. Aspen STC, FA 158254 (Forum July 1, 2003):
[T]he addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy ¶ 4(a)(i).
Further, see Isleworth Land Co. v. Lost in Space, SA, FA 117330 (Forum September 27, 2002):
[I]t is a well-established principle that generic top-level domains are irrelevant when conducting a Policy ¶ 4(a)(i) analysis.
This is because every domain name requires a gTLD or other TLD.
Under Policy ¶ 4(a)(ii), Complainant must make out a prima facie showing that Respondent lacks rights to and legitimate interests in the contested <conagrabrands-us.com> domain name, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and Respondent does not deny, that Respondent has not been commonly known by the domain name <conagrabrands-us.com>, and that Complainant has not licensed or otherwise authorized Respondent to use the CONAGRA FOODS mark. Moreover, the pertinent WHOIS information identifies the registrant of the domain name only as “Edgar John Ngu John Ngu,” which does not resemble the domain name. On this record, we conclude that Respondent has not been commonly known by the disputed domain name so as to have acquired rights to or legitimate interests in it within the ambit of Policy ¶ 4(c)(ii). See, for example, Google LLC v. Bhawana Chandel / Admission Virus, FA 1799694 (Forum September 4, 2018) (concluding that a respondent was not commonly known by a disputed domain name incorporating the GOOGLE mark where the relevant WHOIS record identified that respondent as “Bhawana Chandel,” and nothing in the record showed that that respondent was authorized to use a UDRP Complainant’s mark in any manner). See also Navistar International Corporation v. N Rahmany, FA 620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent employs the <conagrabrands-us.com> Domain name in an e-mail address which it uses to direct messages to unsuspecting Internet users in which it fraudulently offers to sell food products while posing as an executive of Complainant. This employment, commonly called “phishing,” is neither a bona fide offering of goods or services by means of the domain name under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of it under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain name as provided in those subsections of the Policy. See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum April 4, 2016) (finding that a respondent’s use of disputed domain names to send fraudulent email messages, purportedly from agents of a UDRP complainant, to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)). See also Cubist Pharmaceuticals, Inc. v. Gregory Stea, FA1550388 (Forum May 5, 2014):
Respondent is using the domain name in emails to various … suppliers in an attempt to impersonate Complainant and defraud its customers…. The Panel found that such actions precluded a bona fide offer or fair use.
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent’s use of the disputed <conagrabrands-us.com> domain name, as alleged in the Complaint, disrupts Complainant’s business. Under Policy ¶ 4(b)(iii), this stands as proof of Respondent’s bad faith in registering and using it. See, for example, Abbvie, Inc. v. James Bulow, FA 1701075 (Forum November 30, 2016):
Respondent uses the … 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) ….
We are also convinced by the evidence that Respondent registered the <conagrabrands-us.com> domain name while knowing of Complainant and its rights in the CONAGRA FOODS mark. This further demonstrates Respondent’s bad faith in registering the domain name. See, for example, iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum January 1, 2018):
Respondent’s prior knowledge is evident from the notoriety of Complainant’s … trademark as well as from Respondent’s use of its trademark laden domain name ….
The Panel thus finds that Complainant has met its obligations of proof under Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be, and it is hereby, GRANTED.
Accordingly, it is Ordered that the <conagrabrands-us.com> domain name be TRANSFERRED from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: September 20, 2019
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