Bunge Limited, Bunge SA, Bunge Management Services, Inc. and Bunge CIS LLC v. Ekaterina Kochergina
Claim Number: FA2201001982727
Complainants are Bunge Limited, Bunge SA, Bunge Management Services, Inc. and Bunge CIS LLC (“Complainants”), represented by Renee Reuter, Missouri, USA. Respondent is Ekaterina Kochergina (“Respondent”), Russia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bunge-oil.com>, registered with Registrar of Domain Names REG.RU LLC.
PANEL
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.
Alan L. Limbury, as Panelist.
Complainants submitted a Complaint to the Forum electronically on January 31, 2022. The Forum received payment on January 31, 2022. The Complaint was received in both Russian and English.
On February 2, 2022, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <bunge-oil.com> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU LLC registration agreement, which is in Russian, 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 February 7, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint in both Russian and English, setting a deadline of February 28, 2022 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@bunge-oil.com. Also on February 7, 2022, the Russian and English language 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 March 7, 2022, pursuant to Complainants’ request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury 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.
Complainants request that the domain name registration be transferred, without nominating a transferee.
PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS
There are four Complainants in this proceeding. Paragraph 3(a) of the Rules provides that “[a]ny person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
In this case, Bunge SA, Bunge CIS LLC and Bunge Management Services, Inc. are all indirectly wholly owned by their ultimate parent company Bunge Limited and are thus related companies. The Panel finds this to be a sufficient nexus for each to claim to have rights to the <bunge-oil.com> domain name listed in the Complaint. Complainants request that the Panel treat them as a single entity, (collectively referred to as “Bunge” or “Complainant”) in this proceeding. However, the Panel finds it more appropriate to refer to them either individually by name or collectively as “Complainants”.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDINGS
As noted, the Registrar of Domain Names REG.RU LLC registration agreement is in Russian. Pursuant to Rule 11(a), the language of the proceeding in relation to the <bunge-oil.com> domain name shall be Russian unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
The Panel notes that the domain name is in English and that it resolves to a website in Russian which copies images and other content from websites operated in English by two of the Complainants. In the absence of any Response, these circumstances satisfy the Panel that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English were the language of the proceeding.
Further, pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the English and Russian language Written Notice of the Complaint and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant Bunge Limited is the owner of several trademark registrations for BUNGE in the United States. Complainant Bunge SA is the owner of several trademark registrations for BUNGE in countries outside the United States including Russia. Complainant Bunge Management Services, Inc. is the registrant of the domain name <bunge.ru>. The group has been in operation for over 200 years and is a global leader in providing tropical oils for business customers and a supplier of choice to food manufacturers, bakeries, restaurants and foodservice operators.
Respondent’s <bunge-oil.com> domain name is identical or confusingly similar to Complainants’ BUNGE mark.
Respondent lacks rights and legitimate interests in the <bunge-oil.com> domain name. Respondent is not commonly known by the domain name, nor have Complainants authorized or licensed Respondent to use the BUNGE mark in the domain name. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead passes herself off as Complainants on the domain name’s resolving website and in emails.
Respondent registered the <bunge-oil.com> domain name in bad faith with actual knowledge of Complainants’ rights in the BUNGE mark and uses the domain name in bad faith to attract Internet users to an impostor website for commercial gain by passing herself off as Complainants on the domain name’s resolving website and in emails.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainants have established all the elements entitling them to relief.
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 Complainants’ 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”).
Complainants have shown that Bunge Limited has rights in the BUNGE mark through registrations with the United States Patent and Trademark Office (“USPTO”) e.g. BUNGE, Reg. No. 4,362,005, registered July 2, 2013 (the word mark) and BUNGE with a stylized globe extending out of the “U”, Reg. No. 4,524,954, registered May 6, 2014 (the word and design mark).
Complainants have shown that Bunge SA has rights in the BUNGE word mark through Swiss registration No. 542695, registered February 13, 2006, and in the BUNGE word and design mark through international registration No. 864636, registered December 15, 2004 designating under the Madrid Protocol inter alia the Russian Federation.
The Panel finds Respondent’s <bunge-oil.com> domain name to be confusingly similar to both BUNGE marks as it incorporates in its entirety the word mark, which is the dominant feature of the word and design mark, and merely adds a hyphen and the word “oil”, which do nothing to distinguish the domain name from either mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainants have established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <bunge-oil.com> domain name was registered on December 9, 2021, many years after the registrations of Complainants’ BUNGE word and word and design marks. It resolves to a website that prominently displays the BUNGE word and design mark and looks nearly identical to the official websites of Bunge Limited located at “www.bunge.com” and of Bunge Management Services Inc. located at “www.bunge.ru”. On January 17, 2022, Respondent sent an email in Russian from the address “info@bunge-oil.com”, purporting to be from Bunge CIS LLC and offering for sale goods of the kind sold by Complainants.
These circumstances, together with Complainants’ assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that she does have rights or legitimate interests in the <bunge-oil.com> domain name. See JUUL Labs, Inc. v. Dryx Emerson / KMF Events LTD, FA1906001849706 (Forum July 17, 2019).
Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainants have established this element.
Registration and Use in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy, including:
(iii) Respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on its website or location.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainants’ BUNGE word and word and design marks when Respondent registered the <bunge-oil.com> domain name and did so primarily for the purpose of disrupting the business of a competitor. Further, that Respondent has used the domain name, both for a website and email, intentionally to attempt to attract, for commercial gain, Internet users to Respondent’s website, by creating a likelihood of confusion with Complainants’ mark as to the source of Respondent’s website and of the goods promoted on that website. This demonstrates registration and use in bad faith under Policy ¶ 4(b)(iii) and (iv).
Complainants have established this element.
DECISION
Complainants having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bunge-oil.com> domain name be TRANSFERRED from Respondent to Complainant Bunge Limited or to such other of Complainants as Bunge Limited may nominate.
Alan L. Limbury, Panelist
Dated: March 9, 2022
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