The Mosaic Company v. Wambuga Millard Nelson / Millardspeaks
Claim Number: FA2102001932310
Complainant is The Mosaic Company (“Complainant”), represented by Sarah M. Stensland of Patterson Thuente IP, Minnesota, USA. Respondent is Wambuga Millard Nelson / Millardspeaks (“Respondent”), Uganda.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mosaic-co.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 16, 2021; the Forum received payment on February 16, 2021.
On February 17, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <mosaic-co.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 February 18, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 10, 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@mosaic-co.com. Also on February 18, 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. However, Respondent did send emails to the Forum, see below.
On March 16, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant states that it is a well-known Fortune 500 company specializing in crop nutrients and fertilizers. It operates a website at <mosaicco.com>. Complainant has rights in the MOSAIC mark through its registration in the United States in 2006.
Complainant alleges that the disputed domain name is confusingly similar to its MOSAIC mark, only differing by the addition of a hyphen, the letters “CO”, which is an abbreviation of “company”, and the “.com” generic top-level domain (“gTLD”).
According to Complainant, Respondent lacks rights and legitimate interests in the disputed domain name as it is not commonly known by the disputed domain name and is neither an authorized user nor a licensee of the MOSAIC mark. Additionally, Respondent does not use the disputed domain name in connection to any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent fails to make active use of the disputed domain name.
Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. Respondent’s failure to make active use of the disputed domain name disrupts Complainant’s business. Additionally, Respondent engaged in typosquatting, which is further evidence of bad faith registration.
B. Respondent
Respondent failed to submit a Response in this proceeding. In its first email to the Forum, Respondent offers to sell the disputed domain name to Complainant for USD 4,100. In its second email, Respondent states that it acquired the disputed domain name legally, so, if Complainant wishes to acquire it, Complainant should purchase it from Respondent, the price being USD 4,100.
Complainant owns rights in the mark MOSAIC dating back to 2006 and uses it to market crop nutrients and fertilizers.
The disputed domain name was registered in 2021.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
The disputed domain name does not resolve to an active website. Respondent offered to sell the disputed domain name to Complainant for an amount in excess of out-of-pocket costs.
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 disputed domain name differs from Complainant’s MOSAIC mark only by the addition of a hyphen, the letters “CO”, which are an abbreviation of “company”, and the “.com” gTLD. Previous Panels have found that such changes do not sufficiently distinguish a domain name from a mark under Policy ¶ 4(a)(i). See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”); see also Innomed Techs., Inc. v. DRP Servs., FA 221171 (Forum Feb. 18, 2004) (finding that hyphens and top-level domains are irrelevant for purposes of the Policy). The Panel therefore finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name under Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). Here, the WHOIS information on record identifies “Wambuga Millard Nelson / Millardspeaks” as the registrant of the disputed domain. Thus, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
The disputed domain name does not resolve to an active website. This does not constitute a bona fide offer of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii). See Thermo Electron Corp. v. Xu, FA 713851 (Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offer of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
Respondent has offered to sell the disputed domain name for an amount in excess of out-of-pocket costs. This does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Reese v. Morgan, FA 917029 (Forum Apr. 5, 2007) (finding that the respondent’s willingness to sell a contested domain name for more than its out-of-pocket costs provided additional evidence that Respondent had no rights or legitimate interests in the contested domain name). Accordingly, the Panel again finds that Respondent fails to use the disputed domain name to make a bona fide offer of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii).
For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.
Respondent 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 name.
Indeed, as noted above, Respondent offered to sell the disputed domain name for an amount in excess of out-of-pocket costs. This is sufficient to establish bad faith registration and use pursuant to Policy ¶ 4(b)(i). See George Weston Bakeries Inc. v. McBroom, FA 933276 (Forum Apr. 25, 2007) (concluding that the respondent registered and was using the< gwbakeries.mobi> domain name in bad faith according to Policy ¶ 4(b)(i) where it offered it for sale for far more than its estimated out-of-pocket costs it incurred in initially registering the disputed domain name). Thus the Panel finds that Respondent registered and is using the disputed domain name in bad faith pursuant to Policy ¶ 4(b)(i).
The disputed domain name does not resolve to an active website. According to paragraph 3.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Jurisprudential Overview 3.0): “From the inception of the UDRP, panelists have found that the non-use of a domain name (including a blank or “coming soon” page) would not prevent a finding of bad faith under the doctrine of passive holding. While panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement), and (iv) the implausibility of any good faith use to which the domain name may be put.”
In the present case, as already noted, Respondent offered to sell the disputed domain name for a price in excess of out-of-pocket costs. Further, it has not provided any evidence of actual or contemplated good-faith use. Thus it is implausible that the domain name could be used in a way that would not violate the Policy, see Morgan Stanley v. TONY / shentony, FA 1637186 (Forum Oct. 10, 2015) (“Respondent registered the disputed domain name [MORGANSTANLEY.ONLINE] in bad faith because . . . it is difficult to envisage any use of the disputed domain name that would not violate the Policy”).
Respondent made use of a privacy service, that is, it tried to conceal its identity. Given these circumstances, the Panel finds that, in this particular case, a finding of bad faith use can be inferred even though the disputed domain name does not resolve to an active website. See Telstra Corporation Limited v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000). Thus, the Panel finds bad faith registration and use on this ground also.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mosaic-co.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: March 16, 2021
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