Bunge Limited v. Philip Tim / Bunge North America, Inc.
Claim Number: FA2109001965043
Complainant is Bunge Limited (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is Philip Tim / Bunge North America, Inc. (“Respondent”), Missouri, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bungeinc.com>, registered with Porkbun LLC.
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.
The Honourable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on September 23, 2021; the Forum received payment on September 23, 2021.
On September 24, 2021, Porkbun LLC confirmed by e-mail to the Forum that the <bungeinc.com> domain name is registered with Porkbun LLC and that Respondent is the current registrant of the name. Porkbun LLC has verified that Respondent is bound by the Porkbun 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 September 28, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 18, 2021 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@bungeinc.com. Also on September 28, 2021, 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 October 21, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honourable Neil Anthony Brown QC 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 made the following contentions.
Complainant, Bunge Limited, maintains registration in the BUNGE mark with the United States Patent and Trademark Office (USPTO), as well as with other authorities. See Amend. Compl. Ex. A. The disputed domain name, <bungeinc.com>, is identical or confusingly similar to Complainant’s BUNGE mark because it wholly incorporates Complainant’s mark adding in the generic term “inc” and the “.com” generic top-level domain (gTLD) to form a domain name.
Respondent does not have any rights or legitimate interests in the <bungeinc.com> domain name because Respondent is not commonly known by the <bungeinc.com> domain name despite WHOIS information indicating otherwise. Respondent did not have authorization to use Complainant’s BUNGE mark. Respondent redirects the disputed domain name’s resolving website to Complainant’s website. Further, Respondent registered with a privacy service to conceal its identity.
Respondent registered and uses the <bungeinc.com> domain name in bad faith because Respondent uses the <bungeinc.com> domain name to impersonate a representative of Complainant attempting to order IT supplies under an account tied to Complainant. Further bad faith is evidenced through Respondent’s utilization of a privacy service and redirecting users onto Complainant’s own website. Respondent acted with actual knowledge of Complainant’s rights in the BUNGE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company engaged in agribusiness and food production and the provision of related goods and services.
2. Complainant has established its trademark rights to the BUNGE mark by the registration of the mark with the United States Patent and Trade Office (USPTO) and with other authorities. (e.g. Reg. No. 4,643,986 – Registered on Nov. 25, 2014). See Amend. Compl. Ex. A.
3. Respondent registered the <bungeinc.com> domain name on September 7, 2021.
4. Respondent has caused the disputed domain name to redirect to Complainant’s website and has used it to impersonate a representative 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 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”).
Complainant has thus made out the first of the three elements that it must establish.
Rights or Legitimate Interests
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then the burden shifts to Respondent to show it does have rights or legitimate interests. See Advanced International Marketing Corporation v. AA-1 Corp, FA 780200 (Forum Nov. 2, 2011) (finding that a complainant must offer some evidence to make its prima facie case and satisfy Policy ¶ 4(a)(ii)); see also Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s BUNGE trademark and to use it in its domain name, adding the generic term “inc” which does not negate the confusing similarity between the domain name and the trademark;
(b) Respondent registered the <bungeinc.com> domain name on September 7, 2021;
(c) Respondent has caused the disputed domain name to redirect to Complainant’s website and has used it to impersonate a representative of Complainant;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent does not have any rights or legitimate interests in the <bungeinc.com> domain name because Respondent is not commonly known by the <bungeinc.com> domain name despite identifying WHOIS information indicating otherwise. A respondent may not be commonly known by a domain name, under Policy ¶ 4(c)(ii), where a respondent does not affirmatively provide evidence that it is commonly known by a domain name beyond identifying WHOIS information. See Moneytree, Inc. v. Matt Sims / MoneyTreeNow, FA1501001602721 (Forum Mar. 3, 2015) (finding that even though the respondent had listed “Matt Sims” of “MoneyTreeNow” as registrant of the <moneytreenow.com> domain name, the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii), because he had failed to list any additional affirmative evidence beyond the WHOIS information). Identifying WHOIS information lists “Philip Tim” of “Bunge North America, Inc.” as the registrant of the <bungeinc.com> domain name. Complainant further asserts that Respondent was not provided with permission to use Complainant’s BUNGE mark. Nothing else in the record indicates that Respondent is known by the <bungeinc.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the <bungeinc.com> domain name under Policy ¶ 4(c)(ii);
(f) Complainant argues Respondent is not commonly known by the <bungeinc.com> domain name because Respondent uses a privacy service to conceal its identity. Use of a privacy service may be evidence of a respondent not being commonly known by a domain name under Policy ¶ 4(c)(ii). See 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). Complainant submits that the registrant’s identifying information was not visible until after verification from the registrar. See Amend. Compl. Ex. C. Therefore, the Panel finds that Respondent is not commonly known by the <bungeinc.com> domain name under Policy ¶ 4(c)(ii);
(g) Complainant argues that Respondent does not use the <bungeinc.com> domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name’s resolving website to redirect to Complainant’s website is generally not considered a bona fide offering of goods or services, nor any legitimate noncommercial or fair use. See Direct Line Ins. plc v. Low-cost-domain, FA 1337658 (Forum Sept. 8, 2010) (“The Panel finds that using Complainant’s mark in a domain name over which Complainant has no control, even if the domain name redirects to Complainant’s actual site, is not consistent with the requirements of Policy ¶ 4(c)(i) or ¶ 4(c)(iii) . . .”). As the Panel agrees, it finds Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
All of these matters go to make out the prima facie case against Respondent. As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, Complainant argues Respondent registered and uses the <bungeinc.com> domain name in bad faith to pass itself off as an employee of Complainant. Use of a domain name to pass off as a complainant may be evidence of bad faith registration and use under Policy 4(b)(iv). See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use). Here, Respondent passes itself off as Complainant by sending emails purporting to be an employee of Complainant seeking to purchase IT equipment under Complainant’s account. See Amend. Compl. Ex. B. Complainant submits that it has received over seventeen reports from various IT companies regarding Respondent’s activities. Therefore, the Panel finds that Respondent registered and uses the <bungeinc.com> domain name in bad faith under Policy 4(b)(iv).
Secondly, Complainant argues Respondent registered and uses the <bungeinc.com> domain name in bad faith because the <bungeinc.com> domain name resolves to Complainant’s own website. Use of a domain name to redirect users onto a complainant’s website may be evidence of bad faith under Policy ¶ 4(a)(iii). See Verizon Trademark Servs. LLC v. Boyiko, FA 1382148 (Forum May 12, 2011) (“The Panel finds that Respondent’s registration and use of the confusingly similar disputed domain name, even where it resolves to Complainant’s own site, is still registration and use in bad faith pursuant to Policy ¶ 4(a)(iii).”). Therefore, the Panel finds that Respondent registered and uses the <bungeinc.com> domain name in bad faith under Policy ¶ 4(a)(iii).
Thirdly, Complainant argues Respondent registered and uses the <bungeinc.com> domain name in bad faith because it utilized a privacy service at the time of the domain name’s registration. Use of a privacy service may be an indication of bad faith under Policy ¶ 4(a)(iii). See Robert Half International Inc. v. robert arran, FA 1764367 (Forum Feb. 5. 2018) (“Respondent's use of a privacy registration service in an attempt to conceal his identity, though not itself dispositive, is a further indication of bad faith.”). Complainant submits that Respondent’s identity was not revealed to Complainant until the registrar’s verification email after the commencement of this proceeding. See Amend. Compl. Ex. C. Therefore, the Panel finds that Respondent registered and uses the <bungeinc.com> domain name in bad faith under Policy ¶ 4(a)(iii).
Fourthly, Complainant argues Respondent acted with actual knowledge of Complainant’s rights in the BUNGE mark. Actual knowledge may be found where a respondent uses an email address to pass itself off as a complainant. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). Respondent utilized Complainant’s BUNGE mark to send emails while passing itself off as an employee of Complainant. See Amend. Compl. Ex. B. Respondent also used the <bungeinc.com> domain name to redirect users onto Complainant’s own website. Therefore, the Panel finds that Respondent had actual knowledge and was thus acting in bad faith under Policy ¶ 4(a)(iii).
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bungeinc.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honourable Neil Anthony Brown QC
Panelist
Dated: October 26, 2021
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