Cargill, Incorporated v. Miguel Angel Soler
Claim Number: FA1701001713801
Complainant is Cargill, Incorporated (“Complainant”), represented by Patrick J. Gallagher of Norton Rose Fulbright US LLP, Minnesota, USA. Respondent is Miguel Angel Soler (“Respondent”), Spain.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <truviastevia.com>, registered with GoDaddy.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.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on January 23, 2017; the Forum received payment on January 23, 2017.
On January 24, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <truviastevia.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.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 25, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 14, 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@truviastevia.com. Also on January 25, 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.
Respondent did not submit a formal Response, however he sent an E-Mail to the Forum on February 9, 2017, see below. Having received no formal response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On February 21, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it was founded in 1865 and over the past 150 years has expanded globally and dramatically diversified the goods and services it offers under its various marks. Complainant offers food, agriculture, financial and industrial products and services in the United States and internationally. Complainant has used the TRUVIA mark in connection with natural sweeteners and sugar substitutes and other goods and in particular with a variety of stevia based sweetener products. Complainant owns the TRUVIA mark through its many trademark registrations around the world, including in the United States in 2010.
According to Complainant, the disputed domain name is confusingly similar to Complainant’s TRUVIA mark in that Respondent has simply attached the descriptive term “stevia” and the generic top-level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent lacks rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain name, as evidenced by the available WHOIS information. Further, Respondent has been neither licensed nor authorized to use the TRUVIA mark. Additionally, Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name. Rather, Respondent uses the disputed domain name to offer sweeteners and sugar substitute goods that directly compete with those offered by Complainant. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent has registered and is using the disputed domain name in bad faith. First, Respondent’s use of the disputed domain name to offer competing products demonstrates bad faith under Policy ¶ 4(b)(iii). Further, being that Respondent used the disputed domain name to offer products that directly compete with Complainant’s business, Respondent must have had actual and/or constructive knowledge of Complainant and its TRUVIA mark when registering the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
In his E-Mail of February 9, 2017 to the Forum, Respondent states:
Sorry for my late reply about this dispute on TRUVIASTEVIA.com domain.
Domain is for personal use, no "bad faith" as exposed, and no sales or products exposed. I'm not related to Truvia trademark, my domain is TRUVIASTEVIA.com not TRUVIA.com
I'll start a legal process agaisn't [sic] this dispute with some experts. Also I can transfer the domain if you are still interested.
Complainant owns the mark TRUVIA and uses it to market its range of natural sweeteners and sugar substitutes and other goods.
Complainant’s registration of its mark dates back to 2010.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent is using the disputed domain names to point to websites that display products and services that compete with those of 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.”).
As a preliminary issue, the Panel must consider whether Respondent’s E-Mail of February 9, 2017 indicates consent to transfer the domain name. While the sentence “Also I can transfer the domain if you are still interested” could be construed as consent to transfer, it must be understood in context, and the preceding sentence in Respondent’s E-Mail is “I'll start a legal process agaisn't [sic] this dispute with some experts”. That sentence is not consistent with consent to transfer. Consequently, the Panel finds that Respondent has not clearly and unequivocally consented to transfer the disputed domain name and it will proceed to analyze the three elements of the Policy.
The disputed domain name is confusingly similar to Complainant’s TRUVIA mark under Policy ¶ 4(a)(i), as Respondent has simply attached the descriptive term “stevia” and the gTLD “.com.” The term “stevia” refers to a sweetener and sugar substitute extracted from the leaves of the plant species Stevia rebaudiana, see for example: https://en.wikipedia.org/wiki/Stevia .
Typically, panels have found that such changes are insignificant under Policy ¶ 4(a)(i). 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). Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s TRUVIA mark according to Policy ¶ 4(a)(i).
Respondent has been neither licensed nor authorized to use Complainant’s TRUVIA mark in any way. Respondent is not commonly known by the disputed domain name as demonstrated by the available WHOIS information, which lists “Miguel Angel Soler” as registrant of the disputed domain name. Respondent has failed to submit a formal response in this proceeding. As such, given the lack of evidence and argument to infer otherwise, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). 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).
Further, Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name. Respondent uses the disputed domain name to offer sweeteners and sugar substitute goods that directly compete with those offered by Complainant. Accordingly, the Panel finds that Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶¶ 4(c)(i) and 4(c)(iii), respectively. 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).”).
Respondent (who did not reply substantively to Complainant’s contentions) has not presented any plausible explanation for his use of Complainant’s mark. He states: “Domain is for personal use, no ‘bad faith’ as exposed, and no sales or products exposed.” However, the evidence presented by Complainant contradicts this assertion: it shows that Respondent is using the disputed domain name to offer products and services that compete with those of Complainant.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply substantively as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain names.
Respondent’s use of the disputed domain name to offer competing products constitutes bad faith under Policy ¶ 4(b)(iii). 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).”); S Exposure v. S. Exposure, Inc., FA94864 (Forum July 18, 2000) (finding the respondent acted in bad faith by attracting Internet users to a website that competes with the complainant’s business). Consequently, the Panel finds that Respondent has engaged in bad faith disruptive behavior under Policy ¶¶ 4(b)(iii) and (iv).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <truviastevia.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: February 21, 2017
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