Cargill, Incorporated v. Bobga Remmy
Claim Number: FA1701001710734
Complainant is Cargill, Incorporated (“Complainant”), represented by Patrick J. Gallagher of Norton Rose Fulbright US LLP, Minnesota, USA. Respondent is Bobga Remmy (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cargill-foods.com>, registered with Domain.com, LLC.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 4, 2017; the Forum received payment on January 4, 2017.
On January 4, 2017, Domain.com, LLC confirmed by e-mail to the Forum that the <cargill-foods.com> domain name is registered with Domain.com, LLC and that Respondent is the current registrant of the name. Domain.com, LLC has verified that Respondent is bound by the Domain.com, 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 January 6, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 26, 2017 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@cargill-foods.com. Also on January 6, 2017, 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 February 6, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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
1. Respondent’s <cargill-foods.com> domain name is confusingly similar to Complainant’s CARGILL mark.
2. Respondent does not have any rights or legitimate interests in the <cargill-foods.com> domain name.
3. Respondent registered and uses the <cargill-foods.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Cargill, Inc., uses its CARGILL mark to advertise and promote its agricultural and related business around the world and holds multiple registrations for the CARGILL mark, including with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 880,665, registered Nov. 11, 1969).
Respondent registered the <cargill-foods.com> on October 1, 2016, and uses it to resolve to a website offering food products that directly compete with Complainant’s business, and soliciting personal information from Internet users.
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.”).
The Panel finds that Complainant’s registration of the CARGILL mark with the USPTO is sufficient to establish rights in the mark under 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)).
Respondent’s <cargill-foods.com> contains the CARGILL mark in its entirety, merely adding a hyphen, the descriptive term “foods,” and the gTLD “.com.” Such additions to a domain name do not differentiate the domain name from a complainant’s mark. See Gillette Co. v. RFK Assocs., FA 492867 (Forum July 28, 2005) (finding that the additions of the term “batteries,” which described the complainant’s products, and the generic top-level domain “.com” were insufficient to distinguish the respondent’s <duracellbatteries.com> from the complainant’s DURACELL 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). Complainant argues the confusing similarity is enhanced because the term “foods” is descriptive of the products Complainant offers. The Panel agrees and finds that Respondent’s <cargill-foods.com> domain name is confusingly similar to Complainant’s CARGILL mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name); see also AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).
Complainant argues that Respondent has no rights or legitimate interests in <cargill-foods.com> and is not commonly known by the disputed domain name. Complainant has not authorized Respondent to use the CARGILL mark in any way. Where a response is lacking, WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. 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); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). The Panel notes that a privacy service was used by Respondent, but was lifted as a result of the commencement of this proceeding. The WHOIS information of record identifies Respondent as “Bobga Remmy.” Thus, the Panel finds that there is no evidence in the record to indicate that Respondent is commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration).
Complainant further argues Respondent’s lack of rights or legitimate interests in the disputed domain name is evinced by its failure to use the name for a bona fide offering of goods or services or legitimate noncommercial or fair use. The Panel notes that Respondent’s <cargill-foods.com> resolves to a website that displays links that offer various products in direct competition with Complainant’s products. The Panel finds that this is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. 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).”).
The Panel notes that the resolving website does not list prices or purchasing options for the listed products, but instead solicits personal information from Internet users via a “contact us” link. Complainant presumes Respondent either uses the personal information to sell its own competing goods, or may use the personal information for other improper activities. Use of a domain to phish for an Internet user’s personal information does not an indicate Respondent’s rights or legitimate interests in the domain name. See Capital One Fin. Corp. v. Howel, FA 289304 (Forum Aug. 11, 2004) (defining “phishing” as “a practice that is intended to defraud consumers into revealing personal and proprietary information”); see also Morgan Stanley v. Zhange Sheng Xu / Zhang Sheng Xu, FA1501001600534 (Forum February 26, 2015) (“The Panel agrees that the respondent’s apparent phishing attempt provides further indication that the respondent lacks any rights or legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii).”). The Panel therefore finds that Respondent’s use of the disputed domain name is not a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii).”).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant contends that the <cargill-foods.com> domain name was registered and is being used in bad faith because it represents an attempt by Respondent to confuse and attract Internet users, and to compete with Complainant. Use of a disputed domain name to divert possible customers of a complainant and offer competing products is bad faith under Policy ¶¶ 4(b)(iii) and (iv) bad faith. See Fitness International, LLC v. ALISTAIR SWODECK / VICTOR AND MURRAY, FA1506001623644 (Forum July 9, 2015) (“Respondent uses the at-issue domain name to operate a website that purports to offer health club related services such as fitness experts, fitness models, fitness venues, exercise programs, and personal training, all of which are the exact services offered by Complainant. Doing so causes customer confusion, disrupts Complainant’s business, and demonstrates Respondent’s bad faith registration and use of the domain name 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).”). Accordingly, the Panel finds that Respondent has acted in bad faith under Policy ¶ 4(b)(iii) and Policy ¶ 4(b)(iv).
Complainant also asserts that, due to its extensive trademark registrations, Respondent must have had at least constructive knowledge of Complainant's rights in the CARGILL mark when Respondent registered the disputed domain name. Complainant further argues that Respondent’s appropriation of the CARGILL trademark to offer goods and services in direct competition with Complainant indicates that Respondent had actual knowledge of Complainant and its rights. The Panel notes that Respondent uses images of Complainant’s products to promote its offerings. The Panel agrees with Complainant and finds that Respondent had actual knowledge of Complainant’s rights in the CARGILL mark, and that Respondent registered the <cargill-foods.com> domain name in bad faith according to Policy ¶ 4(a)(iii). See Immigration Equality v. Brent, FA 1103571 (Forum Jan. 11, 2008) ("That Respondent proceeded to register a domain name identical to, and with prior knowledge of Complainant's mark is sufficient to prove bad faith registration and use under Policy ¶ 4(a)(iii).").
The Panel finds that Complainant has satisfied 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 <cargill-foods.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: February 7, 2017
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