Bunge Limited v. bunge globalexport
Claim Number: FA2206002001075
Complainant is Bunge Limited (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is bunge globalexport (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bungeglobalexport.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.
The Honorable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on June 20, 2022; the Forum received payment on June 20, 2022.
On June 21, 2022, Namecheap, Inc. confirmed by e-mail to the Forum that the <bungeglobalexport.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 June 27, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 18, 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@bungeglobalexport.com. Also on June 27, 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 July 25, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honorable Neil Anthony Brown QC 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 made the following contentions.
Complainant is a Missouri-based global company specializing in cooking oils. Complainant claims rights in the BUNGE mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,524,954 registered May 6, 2014). See Am. Compl. Ex. B. The disputed domain name <bungeglobalexport.com> is confusingly similar because it wholly incorporates Complainant’s registered mark, merely adding the terms “global” and “export” along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <bungeglobalexport.com> domain name. Complainant has not authorized Respondent to use the BUNGE mark in any way. Additionally, Respondent fails to use the disputed domain name in connection with any bona fide offering of goods or services or for a legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain to offer goods that compete directly with Complainant’s business.
Respondent registered and uses the disputed domain in bad faith. Respondent had actual knowledge or constructive notice of Complainant’s rights in the BUNGE mark prior to registering the disputed domain name. Furthermore, Respondent used a privacy service when registering the disputed domain.
Respondent registered the disputed domain name on May 6, 2022.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company specializing in cooking oils.
2. Complainant has established its rights in the BUNGE mark through registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,524,954 registered May 6, 2014).
3. Respondent registered the disputed domain name on May 6, 2022.
4. Respondent uses the disputed domain name to offer goods that compete directly with Complainant’s business.
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 next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s BUNGE mark. Complainant argues that Respondent’s <bungeglobalexport.com> domain name is identical or confusingly similar to Complainant’s BUNGE mark because it wholly incorporates Complainant’s mark and differs only through the addition of the descriptive terms “global” and “export” and the “.com” gTLD. The addition of a descriptive phrase and gTLD generally fails to distinguish a disputed domain name sufficiently from a mark per Policy ¶ 4(a)(i). See Microsoft Corporation v. Thong Tran Thanh, FA 1653187 (Forum Jan. 21, 2016) (determining that confusing similarity exists where [a disputed domain name] contains Complainant’s entire mark and differs only by the addition of a generic or descriptive phrase and top-level domain, the differences between the domain name and its contained trademark are insufficient to differentiate one from the other for the purposes of the Policy). Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“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”).
(a) Respondent has chosen to take Complainant’ BUNGE mark and to use it in its domain name adding the descriptive words “global” and “export” to the mark;
(b) Respondent registered the domain name on May 6, 2022;
(c) Respondent uses the domain name to offer goods that compete directly with Complainant’s business;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues Respondent lacks rights or legitimate interest in the <bungeglobalexport.com> domain name because Complainant has not given permission to Respondent to use its mark. Complainant further argues that Respondent did not intend to be known by the disputed domain because it used a privacy service to register the disputed domain. Furthermore, while Complainant does not explicitly make an argument as to Respondent’s identity, the Panel notes that the evidence may support a finding that Respondent is not commonly known by the disputed domain name. Where a response is lacking, WHOIS information and other evidence may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Even where a Respondent may appear to be commonly known by a disputed domain name, failure to respond and provide supporting evidence has been deemed insufficient to support a finding of rights under Policy ¶ 4(c)(ii). See Google Inc. v. S / Google International, FA1506001625742 (Forum Aug. 4, 2015) (“Respondent did identify itself as ‘Google International’ in connection with its registration of the Disputed Domain Name, and this is reflected in the WHOIS information. However, Respondent has not provided affirmative evidence from which the Panel can conclude that Respondent was commonly known by the Disputed Domain Name before Respondent’s registration thereof.”). The WHOIS information associated with the disputed domain identifies Respondent as “bunge globalexport.” See Registrar verification email. However, Respondent failed to respond and provide evidence to support a finding that it is commonly known by this name. Therefore, the Panel may find Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent does not use the <bungeglobalexport.com> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Instead, Respondent uses the disputed domain name to offer competing products and services. Use of a disputed domain to offer competing goods and services has been found by previous panels not to be a bona fide offering of goods or services nor a legitimate noncommercial use. See Vanguard Trademark Holdings USA LLC v. Dan Stanley Saturne, FA 1785085 (Forum June 8, 2018) (“Respondent’s use of the disputed domain name does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use” where “Respondent is apparently using the disputed domain name to offer for sale competing services.”). Here, Complainant provides a screenshot of Respondent’s website indicating that it is offering competing products for sale. Compare Am. Compl. Exs. C & D. The Panel therefore finds that Respondent had no legitimate rights in the disputed domain name under Policy ¶¶ 4(c)(i) or (iii).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant does not make an argument regarding offering competing services as they relate specifically to Policy ¶ 4(b)(iii) or(iv). Regardless, the Panel notes that Complainant does allege that Respondent uses the disputed domain name to offer competing services. See Am. Compl. Pgs. 5-6. Use of a disputed domain to offer competing products may be evidence of bad faith disruption of Complainant’s business and an attempt to benefit commercially from any confusion generated. See Gardens Alive, Inc. v. D&S Linx, FA 203126 (Forum Nov. 20, 2003) (“Respondent registered and used the <my-seasons.com> domain name in bad faith pursuant to Policy ¶¶ 4(b)(iii) and (iv) because Respondent is using a domain name that is confusingly similar to the MYSEASONS mark for commercial benefit by diverting Internet users to the <thumbgreen.com> website, which sells competing goods and services.”). The Panel therefore finds evidence of bad faith registration and use pursuant to Policy ¶¶ 4(b)(iii) and (iv).
Secondly, Complainant argues that Respondent had actual and constructive knowledge of Complainant’s rights in the BUNGE mark at the time of registering the <bungeglobalexport.com> domain name. The Panel will disregard arguments of bad faith based on constructive notice as prior UDRP decisions decline to find bad faith as a result of constructive knowledge. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). However, the Panel will determine whether Respondent had actual knowledge of Complainant's rights in the mark prior to registering the disputed domain name as actual knowledge can adequately demonstrate bad faith under Policy ¶ 4(a)(iii). See iFinex Inc. v. xu shuaiwei, FA 1760249 (Forum Jan. 1, 2018) (“Respondent’s prior knowledge is evident from the notoriety of Complainant’s BITFINEX trademark as well as from Respondent’s use of its trademark laden domain name to direct internet traffic to a website which is a direct competitor of Complainant”). To support its argument regarding actual knowledge, Complainant points to the fact that the resolving webpage of the disputed domain name offered competing services and products. Compare Am. Compl. Exs. C & D. As such, the Panel finds that Respondent did have actual knowledge of Complainant’s right in its mark, which supports a finding of bad faith registration under Policy ¶ 4(a)(iii) which the Panel now makes.
Thirdly, Complainant argues that Respondent’s use of a privacy service when registering the disputed domain name further demonstrates bad faith registration. Past Panels have noted that although engaging a privacy service alone is not sufficient, it may demonstrate bad faith based on the overall context of the case under Policy ¶ 4(a)(iii). See Robert Half International Inc. v. robert arran, FA 1764367 (Forum Feb. 5. 2018) (“Respondent's use of a privacy registration service in an attempt to conceal his identity, though not itself dispositive, is a further indication of bad faith.”); see also Microsoft Corporation v. Arif Khan, FA2008001907105 (Forum Aug. 31, 2020) (“in the context of this case Respondent’s use of a WHOIS privacy service further supports a finding of bad faith under Policy ¶ 4(a)(iii).”). The publicly available WHOIS information demonstrates that Respondent utilized a privacy service when registering the disputed domain. See Am. Compl. Ex. A. As the Panel agrees, it finds that Respondent’s use of a privacy service demonstrates bad faith registration under Policy ¶ 4(a)(iii).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bungeglobalexport.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown QC
Panelist
Dated: July 26, 2022
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