Cargill, Incorporated v. Stark Jamie
Claim Number: FA1804001780196
Complainant is Cargill, Incorporated (“Complainant”), represented by Patrick J. Gallagher of Cozen O'Connor, Minnesota, USA. Respondent is Stark Jamie (“Respondent”), New Jersey, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cargillgroups.com> (the “Domain Name”), registered with NameSilo, LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Dawn Osborne as Panelist.
Complainant submitted a Complaint to the Forum electronically on April 3, 2018; the Forum received payment on April 3, 2018.
On April 3, 2018, NameSilo, LLC confirmed by e-mail to the Forum that the <cargillgroups.com> domain name is registered with NameSilo, LLC and that Respondent is the current registrant of the name. NameSilo, LLC has verified that Respondent is bound by the NameSilo, 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 April 5, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 25, 2018 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@cargillgroups.com. Also on April 5, 2018, 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 30, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne 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’s contentions can be summarised as follows:
Complainant owns the trade mark CARGILL registered, inter alia, in the USA for food products and storage and transportation of the same with first use recorded as 1865. It has owned Cargill.com since 1994.
The Domain Name registered in 2018 incorporates Complainant’s mark in its entirety merely adding the generic term ‘groups’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.
Respondent is not commonly known by the Domain Name and has no authorisation from Complainant to use Complainant’s mark.
Respondent’s use of a domain name that incorporates Complainant’s mark in its entirety in connection with a web site that directly copies the content of Complainant’s own web site cannot be a bona fide offering of goods or services or a legitimate non commercial fair use. Respondent has no rights or legitimate interests in the Domain Name.
Further the copying of the text and graphics used on Complainant’s site shows actual knowledge on the part of Respondent of Complainant and Complainant’s business and reflects Respondent’s attempt to pass itself off as Complainant, confusing Internet users for commercial gain and is registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns the trade mark CARGILL registered, inter alia, in the USA for food products and storage and transportation of the same with first use recorded as 1865. It has owned Cargill.com since 1994.
The Domain Name has been used for a site that mimics the official site 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.”).
Identical or Confusingly Similar
The Domain Name consists of Complainant’s CARGILL mark (registered, inter alia, in the USA since at least 1865 for food transportation services) the generic words ‘groups’ and the gTLD.com. Previous panels have found confusing similarity when a respondent merely adds generic terms to a complainant's mark. See PG&E Corp. v. Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common descriptive or generic terms create new or different marks nor does it alter the underlying mark held by the Complainant). The Panel agrees that the addition of the generic word ‘groups’ does not distinguish the Domain Name from Complainant's trade mark pursuant to the Policy.
The TLD .com does not serve to distinguish the Domain Name from the CARGILL mark, which is the distinctive component of the Domain Name. See Red Hat Inc v. Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the TLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which Complainant has rights.
As such the Panel holds that Paragraph 4(a)(i) of the Policy has been satisfied.
Rights or Legitimate Interests
Complainant has not authorised the use of its mark. Respondent has not answered this Complaint and there is no evidence or reason to suggest Respondent is, in fact. commonly known by the Domain Name. See Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sep. 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).
The web site to which the Domain Name redirects purports to offer services in competition with those of Complainant. It does not make it clear that there is no commercial connection with Complainant and in fact mimics the official site of Complainant. The Panel finds this use is deceptive and confusing. As such it cannot amount to the bona fide offering of goods and services. See Am. Intl Group Inc v. Busby FA 156251 (Forum May 30, 2003) (finding that the respondent's attempts to pass itself off as the complainant online demonstrated no rights or legitimate interests in the domain name).
As such the Panelist finds that Respondent does not have rights or a legitimate interest in the Domain Name and that Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
In the opinion of the panelist the use made of the Domain Name in relation to the site is confusing and disruptive in that visitors to the site might reasonably believe it is connected to or approved by Complainant as it offers competing services under a Domain Name containing Complainant’s CARGILL mark connected to a site mimicking the genuine corresponding web site of Complainant. The use of this mimic site and Complainant's CARGILL for a competing site offering similar services shows that Respondent was aware of Complainant and its business at the time of registration of the Domain Name. Accordingly, the Panel holds that Respondent has intentionally attempted to attract for commercial gain Internet users to its website by creating a likelihood of confusion with Complainant's trade marks as to the source, sponsorship, affiliation or endorsement of the web site likely to disrupt the business of Complainant. See Allianz of Am. Corp v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own web site and likely profiting).
As such, the Panelist believes that Complainant has made out its case that the Domain Name was registered and used in bad faith and has satisfied the third limb of the Policy under paras. 4(b)(iv) and 4(b)(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 <cargillgroups.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: May 1, 2018
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page