Cargill, Incorporated v. Bui Tan Dat
Claim Number: FA1611001701539
Complainant is Cargill, Incorporated (“Complainant”), represented by Patrick J. Gallagher of Norton Rose Fulbright US LLP, Minnesota, USA. Respondent is Bui Tan Dat (“Respondent”), Vietnam.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cargillfeed.com>, registered with P.A. Viet Nam Company Limited.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Duc T. Dang as Panelist.
Complainant submitted a Complaint to the Forum electronically on November 4, 2016; the Forum received payment on November 4, 2016.
On November 8, 2016, P.A. Viet Nam Company Limited confirmed by e-mail to the Forum that the <cargillfeed.com> domain name is registered with P.A. Viet Nam Company Limited and that Respondent is the current registrant of the name. P.A. Viet Nam Company Limited has verified that Respondent is bound by the P.A. Viet Nam Company Limited 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 November 9, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 29, 2016 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@cargillfeed.com. Also on November 9, 2016, 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 December 05, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Duc T. Dang 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 has rights in the CARGILL mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 880,665, registered on November 11, 1969). Respondent’s <cargillfeed.com> domain name is confusingly similar to the CARGILL mark because it contains the mark along with the generic term “feed” and the generic top-level domain (“gTLD”) “.com.”
Respondent is not commonly known by the <cargillfeed.com> domain name as the available WHOIS information identifies “Bui Tan Dat” as Registrant and because Respondent is not associated with Complainant such that it would have permission to use the CARGILL mark. Respondent fails to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain name redirects to a <vmua.nv> website, at which various goods are offered for sale including agricultural seeds in competition with those sold by Complainant.
Respondent uses the <cargillfeed.com> domain name in bad faith because the domain name redirects to a <vmua.nv> website, at which various goods are offered for sale including agricultural seeds in competition with those sold by Complainant. Respondent registered the <cargillfeed.com> domain name in bad faith because it did so with constructive or actual knowledge of Complainant’s rights in the CARGILL mark.
B. Respondent
Respondent has failed to submit a formal Response. The Forum has received correspondence from Respondent on November 9, 2016 written in Vietnamese language. The Panel notes that the <cargillfeed.com> domain name was created on May 31, 2016.
Complainant, Cargill, Incorporated, has rights in the CARGILL mark through its registration with the USPTO (e.g., Reg. No. 880,665, registered on November 11, 1969) which it uses for various food, agriculture, and financial and industrial products and services. The CARGILL mark is famous and widely known in the world and in Vietnam for animal feed products.
Respondent, Bui Tan Dat, registered the <cargillfeed.com> domain name on May 31, 2016, which is confusingly similar to the CARGILL mark as it contains the mark along with the generic term “feed” and the generic top-level domain (“gTLD”) “.com.”. Respondent uses the <cargillfeed.com> domain name in bad faith because the disputed domain name redirects to a <vmua.nv> website, at which various goods are offered for sale including agricultural seeds in competition with those sold by 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.
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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant claims to hold rights in the CARGILL mark through its registration with the USPTO (e.g., Reg. No. 880,665, registered on November 11, 1969) which it uses for various food, agriculture, and financial and industrial products and services. Complainant has provided this registration in Exhibit A. As such, the Panel finds that Complainant has rights in the CARGILL mark. 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).).
Complainant maintains that Respondent’s <cargillfeed.com> domain name is confusingly similar to the CARGILL mark because it contains the mark along with the term “feed” and the gTLD “.com.” Complainant urges that “feed” is a generic term. The Panel holds that the <cargillfeed.com> domain name is confusingly similar to the CARGILL mark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (Finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i).).
Complainant contends that Respondent has no rights or legitimate interests in the disputed domain name. Complainant claims that Respondent is not commonly known by the <cargillfeed.com> domain name as the available WHOIS information identifies “Bui Tan Dat” as Registrant and because Respondent is not associated with Complainant such that it would have permission to use the CARGILL mark. The Panel finds a lack of contrary evidence, and as such it is established that Respondent is not so known. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum September 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark).
Complainant alleges that Respondent fails to use the <cargillfeed.com> domain name to provide a bona fide offering of goods or services or a legitimate noncommercial or fair use because the domain name redirects to a <vmua.nv> website, at which various goods are offered for sale including agricultural seeds in competition with those sold by Complainant. Complainant has provided screenshots of the <vmua.nv> website in Exhibit D to demonstrate this use. The Panel finds this sufficient to show that Respondent is competing with Complainant, and the Panel also holds that the <cargillfeed.com> domain name provides neither a bona fide offering of goods or services nor a legitimate noncommercial or fair use according to Policy ¶ 4(c)(i) and Policy ¶ 4(c)(iii). See General Motors LLC v. MIKE LEE, FA 1659965 (Forum March 10, 2016) (finding that “use of a domain to sell products and/or services that compete directly with a complainant’s business does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
Complainant contends that Respondent uses the <cargillfeed.com> domain name in bad faith because the domain name redirects to a <vmua.nv> website, at which various goods are offered for sale including agricultural seeds in competition with those sold by Complainant. Complainant has provided screenshots of the <vmua.nv> website in Exhibit D to demonstrate this use. The Panel finds this sufficient to show that Respondent is using the <cargillfeed.com> domain name to compete with Complainant. As such, the Panel holds that such use is bad faith according to Policy ¶ 4(b)(iii) and/or Policy ¶ 4(b)(iv). See DatingDirect.com Ltd. v. Aston, FA 593977 (Forum Dec. 28, 2005) (“Respondent is appropriating Complainant’s mark to divert Complainant’s customers to Respondent’s competing business. The Panel finds this diversion is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii).”); see also Xylem Inc. and Xylem IP Holdings LLC v. YinSi BaoHu YiKaiQi, FA1504001612750 (Forum May 13, 2015) (“The Panel agrees that Respondent’s use of the website to display products similar to Complainant’s, imputes intent to attract Internet users for commercial gain, and finds bad faith per Policy ¶ 4(b)(iv).”).
Complainant also asserts that Respondent registered the <cargillfeed.com> domain name in bad faith because it did so with constructive or actual knowledge of Complainant’s rights in the CARGILL mark. Complainant urges that Respondent had such knowledge because Complainant’s longstanding use of the CARGILL mark and advertising efforts in relation to the mark have made the mark famous. The Panel finds that the CARGILL mark is famous and widely known so as to have provided Respondent with actual knowledge of Complainant’s rights at the time of domain name registration, and in fact such registration has been made in bad faith. 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.”).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cargillfeed.com> domain name be TRANSFERRED from Respondent to Complainant.
Duc T. Dang, Panelist
Dated: December 22, 2016
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page