ConAgra Foods RDM, Inc. v. Sean Connolly
Claim Number: FA1905001845206
Complainant is ConAgra Foods RDM, Inc. (“Complainant”), represented by Caroline Chicoine of HUSCH BLACKWELL LLP, Missouri, USA. Respondent is Sean Connolly (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <congrabrand.com>, registered with NetEarth One Inc. d/b/a NetEarth.
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.
Kenneth L. Port as Panelist.
Complainant submitted a Complaint to the Forum electronically on May 28, 2019; the Forum received payment on May 28, 2019.
On May 29, 2019, NetEarth One Inc. d/b/a NetEarth confirmed by e-mail to the Forum that the <congrabrand.com> domain name is registered with NetEarth One Inc. d/b/a NetEarth and that Respondent is the current registrant of the name. NetEarth One Inc. d/b/a NetEarth has verified that Respondent is bound by the NetEarth One Inc. d/b/a NetEarth 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 May 29, 2019, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of June 18, 2019 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@congrabrand.com. Also on May 29, 2019, 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 June 19, 2019, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Kenneth L. Port 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 operates in the consumer food industry. Complainant has rights in the CONAGRA BRANDS mark based upon its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 5,413,453, registered February 27, 2018). See Compl. Annex D. Respondent’s <congrabrand.com> domain name is identical or confusingly similar to Complainant’s CONAGRA BRANDS mark because it wholly incorporates a misspelling of Complainant’s CONAGRA BRANDS mark, merely removing an “a” and an “s,” as well as adding the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights or legitimate interests in the <congrabrand.com> domain name. Respondent is not authorized to use Complainant’s CONAGRA BRANDS mark and is not commonly known by the disputed domain name. See Compl. Annex A. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use because Respondent uses the disputed domain name to pass of as Complainant via email. See Compl. Annex H.
Respondent registered and uses the <congrabrand.com> domain name in bad faith because Respondent uses the disputed domain name to pass of as Complainant via email. See Compl. Annex H. Finally, Respondent had actual knowledge of Complainant’s CONAGRA BRANDS mark prior to registering the disputed domain name.
B. Respondent
Respondent failed to submit a Response in this proceeding. Respondent registered the disputed domain name on August 12, 2018.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s valid and subsisting trademark; that Respondent has no rights or legitimate interests in or to the disputed domain name; and that Respondent has engaged in bad faith use and registration of the disputed domain name.
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 Panel finds that the disputed domain name, <congrabrand.com>, is confusingly similar to Complainant’s valid and subsisting trademark, CONAGRA BRANDS. Complainant has adequately plead its rights and interests in this trademark. Respondent arrives at the dispute domain name by adopting Complainant’s mark in total, deleting an “a” and an “s” and adding the g TLD “.com.” This is insufficient to distinguish the disputed domain name from Complainant’s trademark.
As such, the Panel finds that the dispute domain name is confusingly similar to Complainant’s trademark.
The Panel further finds that Respondent lacks any rights or legitimate interests in or to the dispute domain name. Respondent has not right, permission or license to register the disputed domain name. Respondent is not commonly known by the disputed domain name. Additionally, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods and services or for a legitimate noncommercial or fair use because Respondent apparently uses the disputed domain name to pass itself off as Complainant via email. See Compl. Annex H.
As such, the Panel finds that Respondent has no rights or legitimate interests in or to the disputed domain name.
The Panel further finds that Respondent has engaged in bad faith use and registration. Respondent registered and uses the <congrabrand.com> domain name in bad faith because Respondent uses the disputed domain name to pass itself off as Complainant via email. See Compl. Annex H. A respondent’s use of a disputed domain name to send fraudulent emails support a finding of bad faith registration and use under Policy ¶ 4(b)(iii)). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)). Complainant provides a screenshot of an email in which Respondent purportedly uses an email address associated with the disputed domain name to pass itself off as Complainant. See Compl. Annex H. Thus, the Panel finds that Respondent has engaged in bad faith registration and use under Policy ¶ 4(b)(iii).
Further, as a result of Complainants long use and notoriety and a totality of the circumstances, the Panel finds that Respondent had actual notice of Complainant’s prior rights and interests in and to the trademark CONAGRA BRANDS. Respondent’s attempt to pass itself off as Complainant via a phishing scheme further supports this conclusion. See Compl. Annex H.
Furthermore, Complainant asserts that Respondent registered and uses the <congrabrand.com> domain name in bad faith because Respondent engages in phishing via email. Use of a misleading email address to defraud unwary customers certainly constitutes bad faith. See Airbnb, Inc. v. JAMES GRANT, FA1760182 (Forum Dec. 28, 2017) (“Using a misleading email address to defraud unwary customers certainly constitutes bad faith.”). Thus, the Panel finds that Respondent registered and uses the domain in bad faith because Respondent has engaged in phishing via email.
Finally, Complainant argues Respondent registered and uses the <congrabrand.com> domain name in bad faith because Respondent has engaged in typosquatting. See Compl. Annex H. Where a disputed domain name consists of a complainant’s mark with small typographical errors introduced therein, a respondent has engaged in typosquatting—and thus registered and used the at-issue domain names in bad faith. See Vanguard Trademark Holdings USA LLC v. Shuai Wei Xu / Xu Shuai Wei, FA 1784238 (Forum June 1, 2018) (finding the respondent engaged in typosquatting—and thus registered and used the at-issue domain names in bad faith—where the names consisted of the complainant’s mark with small typographical errors introduced therein). Thus, the Panel finds that Respondent registered and uses the disputed domain name in bad faith because Respondent has engaged in typosquatting.
As such, the Panel finds that Respondent has engaged in bad faith use and registration of the disputed domain name.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <congrabrand.com> domain name be TRANSFERRED from Respondent to Complainant.
Kenneth L. Port, Panelist
Dated: June 20, 2019
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