Bunge Limited v. Rick Jackson / Bunge
Claim Number: FA2110001967954
Complainant is Bunge Limited (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is Rick Jackson / Bunge (“Respondent”), Missouri, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bunge-global.com> (the “Domain Name”), 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.
Clive Elliott Q.C. as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 6, 2021; the Forum received payment on October 6, 2021.
On October 6, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the 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 October 12, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 1, 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@bunge-global.com. Also on October 12, 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.
On November 1, 2021 Respondent filed a response.
On November 3, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Clive Elliott Q.C. 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 is an American agribusiness and food company, with its headquarters in St Louis, Missouri, United States.
Complainant is the owner of a number of trade mark registrations (“Complainant’s Mark”) in the United States and elsewhere, including the following:
|
Mark |
Jurisdiction |
Registration No |
Date of Registration |
|
[IMAGE OMITTED] |
United States |
4524954 |
May 6, 2014 |
|
[IMAGE OMITTED] |
United States |
4554884 |
June 24, 2014 |
|
BUNGE |
United States |
4643986 |
November 25, 2014 |
|
[IMAGE OMITTED] |
United States |
4636025 |
November 11, 2014 |
|
BUNGE |
United States |
4362005 |
July 3, 2013 |
|
BUNGE |
United States |
2036787 |
February 11, 1997 |
|
[IMAGE OMITTED] |
United States |
2682681 |
February 4, 2003 |
|
BUNGE |
United States |
2785963 |
November 25, 2003 |
Complainant asserts that the Domain Name is confusingly similar to Complainant’s Mark as it incorporates Complainant’s Mark in its entirety, with the addition of a dash and the generic term “global”.
Complainant submits that if the Domain Name is allowed to continue to be used by Respondent, Complainant’s valuable trade mark rights will continue to be harmed and the goodwill Complainant has in Complainant’s Mark will be damaged.
Complainant contends that the Domain Name directs Internet users to a website that mirrors and impersonates Complainant’s official website, as is shown from the screenshots below (the rather colourful descriptions “Real site” and “Impostor site” are Complainants): [IMAGE OMITTED]
Complainant submits that Respondent is not using the Domain Name in connection with any bona fide use other than to improperly benefit from the fame of Complainant’s Marks.
Complainant also states that Respondent has registered the Domain Name using a privacy service, concealing Respondent’s identity. Complainant has since learnt that Respondent has used Complainant’s name, address and telephone number as the owner of the Domain Name including the contact name of one of Complainant’s current employees. Complainant submits that this shows that Respondent had actual notice of Complainant’s rights and knowingly attempted to defraud Complainant’s customers and investors.
B. Respondent
Respondent states that he has been employed by Complainant since October 2020 and that his current title at the company is Director of Sales and Market Development in North America for the Protein Division.
Respondent states that he did not register the Domain Name, he did not authorize any third person to register the Domain Name on his behalf, nor did he authorize the Domain Name to be used with a website that mirrors the website of his employer, Complainant.
Respondent contends that he has no connection with the Domain Name or the person who registered it, and asserts that the person who registered the Domain Name did so whiles impersonating him, likely as he knew of Respondent’s position with the company.
Respondent agrees with assertions made in Complaint and requests that the Domain Name be transferred to Complainant.
For the reasons set out below it is determined that the Domain Name be transferred to Complainant.
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.
PROCEDURAL ISSUES
The circumstances of this case are unusual. Bunge Limited is the Complainant, while Rick Jackson / Bunge is the Respondent. The reason for this is that Rick Jackson / Bunge is identified in the WHOIS information read in conjunction with information provided by the registrar namecheap.com, as the registrant (Rick Jackson) and the registrant organization (Bunge). That is, even though technically the true identity of the registrant is unknown, because it stands behind a privacy service “Withhold for Privacy Purposes” based in Reykjavík.
Unusually, Complainant has filed both the complaint and the response, agreeing to a transfer of the Domain Name. Under the circumstances the Panel treats the Response as more in the nature of a further submission from Complainant and gives it limited weight. Instead, service having been effected on the registrar and no response having been received from the true registrant, the Panel treats Complainant’s allegations as effectively uncontested.
Therefore, the Panel analyzes the case under the elements of the UDRP in the normal manner, as if a response had not been filed.
Complainant plainly has rights in the BUNGE mark (“Complainant’s Mark”) through its registration of the mark with the USPTO. Registration of a mark with the USPTO is sufficient to establish rights in a mark per Policy ¶ 4(a)(i).
Complainant argues that the Domain Name is confusingly similar to Complainant’s Mark, given it contains a generic word and added punctuation like a hyphen does not distinguish the Domain Name from Complainant’s Mark. The Panel agrees and finds the Domain Name is confusingly similar to Complainant’s Mark per Policy ¶ 4(a)(i).
Complainant contends that Respondent lacks rights and legitimate interests in the Domain Name because Respondent is not authorized or permitted to use Complainant’s Mark and is not commonly known by the Domain Name. WHOIS information may be and typically is used to determine whether a respondent has rights or legitimate interest in a disputed domain name under Policy ¶ 4(c)(ii). The difficulty here is that, on the face of it, the relevant WHOIS information indicates Respondent is known by the Domain Name. However, Complainant of course contends that the only reason for that is because Respondent has impersonated Rick Jackson an employee of Complainant and Bunge Limited.
Even though Respondent appears, on the face of the WHOIS and registrar’s information to be identified by the Domain Name, the Panel may still find Respondent lacks rights or legitimate interest in the Domain Name. That is, if Respondent in fact lacks authorization to use Complainant’s Mark and more to the point fails to provide affirmative evidence in support of its identity. See Ripple Labs Inc. v. Jessie McKoy / Ripple Reserve Fund, FA 1790949 (Forum July 9, 2018) (finding that, although the respondent listed itself as “Jessie McKoy / Ripple Reserve Fund” in the WHOIS contact information, it did not provide any affirmative evidence to support this identity; combined with the fact that the complainant claimed it did not authorize the respondent to use the mark, the respondent is not commonly known by the domain name). In the present case, in the absence of affirmative evidence in support of its identity the Panel finds Respondent is not commonly known by the Domain Name per Policy ¶ 4(c)(ii).
Further, Respondent has attempted to pass itself off as Complainant and resolve to a webpage that offers products and services related to Complainant’s Mark. As noted above, Complainant has provided a screenshot that shows links and products related to Complainant’s business. This is certainly not what might be described as a bona fide offering of goods or services or legitimate noncommercial or fair use per Policy ¶ 4(c)(i) or (iii).
Registration and Use in Bad Faith
As discussed above, the Domain Name redirects internet users to a webpage that mirrors and impersonates Complainant’s webpage and offers similar services and products. This is evidence of bad faith per Policy ¶ 4(b)(iii) and (iv).
The Panel concludes that Respondent had knowledge of Complainant’s rights in Complainant’s Mark by virtue of the conduct referred to above. Complainant had widely registered Complainant’s Mark in at least the United States, where Complainant is based. Further, Respondent’s impersonation of Complainant, could only arise from actual knowledge on Respondent’s part, accompanied by an intent to mislead the public in some manner. As such, the Panel determines Respondent must have had actual knowledge of Complainant’s rights in its mark. Accordingly. the panel finds the existence of bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bunge-global.com> Domain Name be TRANSFERRED from Respondent to Complainant.
Clive Elliott Q.C. Panelist
Dated: November 17, 2021
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