Bunge Limited / Bunge France S.A.S. / Bunge S.A. v. ALAN GALMES / i3f6yr / Luengo Galmes / bunge sas
Claim Number: FA2203001986938
Complainant is Bunge Limited / Bunge France S.A.S. / Bunge S.A. (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is ALAN GALMES / i3f6yr / Luengo Galmes / bunge sas (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue is <bunge-sas.net> and <bunge-sas.org>, registered with Google LLC.
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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 4, 2022; the Forum received payment on March 4, 2022.
On March 7, 2022, Google LLC confirmed by e-mail to the Forum that the <bunge-sas.net> and <bunge-sas.org> domain names are registered with Google LLC and that Respondent is the current registrant of the names. Google LLC has verified that Respondent is bound by the Google LLC 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 March 15, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 4, 2022 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-sas.net, postmaster@bunge-sas.org. Also on March 15, 2022, 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 April 11, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Paul M. DeCicco 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 names be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS
Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
The named Complainants in this matter Bunge Limited, Bunge France S.A.S. (“Bunge France”) and Bunge S.A. (“Bunge Swiss”) are all related companies. The ultimate parent of the various Bunge subsidiary companies is Bunge Limited. Bunge France and Bunge Swiss are wholly indirectly owned by Bunge Limited.
The Panel therefore finds that the three nominal complainants (herein referred to collectively as Complainant) have a sufficient nexus to each other and to the matters complained of herein such that they may be treated as if a single entity. See Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003) (treating the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names); see also, Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004) (finding a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark).
PRELIMINARY ISSUE: MULTIPLE RESPONDENTS
Complainant alleges that notwithstanding differences in the domain registration records for the at-issue domain names the domain names are nevertheless effectively controlled by the same person and/or entity. Paragraph 3(c) of the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”) provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.”
The domain names in the present dispute are similarly constructed as both domain names contain identical second levels i.e. “bunge-sas.” Both domain names were registered using the same registrar and privacy service. The two domain names also have telephone contacts with identical country codes and use the same email service. Significantly, the registered owner of each domain name contains the last name of one of Complainant’s executives. While the domain names’ underlying registrants may not have identical WHOIS data, they unmistakably appear to be related to, or controlled by, the same person, persons, or entity. Furthermore, Complainant’s contention that the domain names’ registrants be treated as a single entity is unopposed. Therefore, the Panel will treat the domain names’ registrants as a single entity for the purposes of this proceeding.
A. Complainant
Complainant contends as follows:
Complainant is an agricultural company.
Complainant has rights in the BUNGE mark through its registrations with the USPTO.
Respondent’s <bunge-sas.net> and <bunge-sas.org> domain names are each confusingly similar to Complainant’s mark as each incorporates the mark in its entirety and adds the term “-sas” along with the “.net” or “.org” generic top-level domains (“gTLDs”).
Respondent lacks rights and legitimate interests in the <bunge-sas.net> and <bunge-sas.org> domain names. Respondent is not commonly known by the at-issue domain names, nor has Complainant authorized or licensed Respondent to use its BUNGE mark. Respondent does not use the at-issue domain names for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead passes itself off as Complainant in emails from the “.org” gTLD while passively holding.
Respondent registered and uses the <bunge-sas.net> and <bunge-sas.org> domain names in bad faith. Respondent passes off as Complainant in emails from the “.org” domain name. Respondent registered the at-issue domain names with actual knowledge of Complainant’s rights in the BUNGE mark. Respondent inactively holds the at-issue domain names’ as each fails to address a website. Respondent hid its information behind a WHOIS privacy service.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has trademark rights in BUNGE.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the BUNGE trademark.
Respondent uses one at-issue domain name to host email while neither domain name addresses a website.
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 at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration of its BUNGE mark establishes Complainant’s rights in such mark for the purposes of Policy 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
The at-issue domain name contains Complainant’s BUNGE trademark followed by a hyphen and the term “sas” with all followed by either the “.com” or “org” top level domain name. The differences between either domain name and Complainant’s trademark are insufficient to distinguish either domain name from Complainant’s trademark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <bunge-sas.net> and <bunge-sas.org> domain names are each confusingly similar to Complainant’s BUNGE trademark. See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”).
Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.
The WHOIS information for <bunge-sas.net> and <bunge-sas.org> respectively indicates that Luengo Galmes and ALAN GALMES are the domain names’ nominal registrants and there is nothing in the record indicating that Respondent is otherwise known by either at-issue domain name. Therefore, the Panel finds that Respondent is not commonly known by either at-issue domain name under Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).
Respondent’s <bunge-sas.net> and <bunge-sas.org> domain name each fail to address an active website. Respondent uses email hosted from one of the domain names to pass itself off as Complainant, assuredly with the intent to defraud and swindle the email’s recipient. Neither holding a confusingly similar domain name passively nor using it to perpetuate fraud is indicative of a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See Nutri/System IPHC, Inc. v. Usama Ayub, FA1725806 (Forum June 5, 2017) (holding that “Respondent does not use the <nutrisystemturbo.us> domain for a bona fide offering of goods or services because the domain name resolves to a website that currently is designated as ‘under construction.’”); see also, Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name).
Given the forgoing, Complainant satisfies its initial burden under Policy ¶ 4(a)(ii) and conclusively demonstrates Respondent’s lack of rights and lack of interests in respect of the at-issue domain name.
As discussed below without limitation, bad faith circumstances are present which compel the Panel to conclude that Respondent acted in bad faith pursuant to paragraph 4(a)(iii) of the Policy.
First, Respondent uses the at-issue <bunge-sas.org> domain name to host and send email designed to deceive Complainant’s customers, in furtherance of fraud, into falsely believing they are dealing with Complainant. Such use of the domain name is disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the Respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii));see also Progress Rail v. Woods, (Forum FA1906001849692) (“Using a disputed domain name to pass off as an employee of a complainant via email can demonstrate bad faith under Policy ¶¶ 4(b)(iii) and (iv). … The Panel finds that Respondent registered and uses the disputed domain name in bad Faith under Policy ¶¶ 4(b) (iii) and (iv).”); see also, Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use).
Additionally, Respondent holds <bunge-sas.net> passively. Doing so also shows Respondent’s bad faith under Policy ¶ 4(a)(iii). See CommScope, Inc. of North Carolina v. Zhuang Yan / WANGYONG, FA 1764026 (Forum Feb. 14, 2018) (“Respondent’s domain names do not have resolving websites. Using a domain name to resolve to an inactive website (or no website at all) indicates bad faith registration and use.”).
Moreover, Respondent had actual knowledge of Complainant’s rights in the BUNGE mark when it registered <bunge-sas.net> and <bunge-sas.org> as domain names. Respondent’s actual knowledge is evident from the notoriety of the BUNGE trademark and from Respondent’s use of <bunge-sas.org> to impersonate Complainant in furtherance of the email based scheme discussed elsewhere herein. Respondent’s registration and use of the <bunge-sas.net> and <bunge-sas.org> domain names with knowledge of Complainant’s rights in such domain name further shows Respondent’s bad faith pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); 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).
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-sas.net> and <bunge-sas.org> domain names be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: April 12, 2022
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