Oleina SA, Bunge CIS LLC, and Bunge Limited v. Andrei Veselov / Private Person
Claim Number: FA2203001989819
Complainant is Oleina SA, Bunge CIS LLC, and Bunge Limited (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is Andrei Veselov / Private Person (“Respondent”), Russian Federation.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <oleina.ru.com> (“Domain Name”), registered with Registrar of Domain Names REG.RU 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.
Nicholas J.T. Smith as Panelist.
Complainant participated in the mandatory CentralNic Mediation, and the mediation process was terminated on March 25, 2022.
Complainant submitted a Complaint to the Forum electronically on March 25, 2022; the Forum received payment on March 25, 2022.
On Mar 28, 2022, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <oleina.ru.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 and has thereby agreed to resolve domain disputes brought by third parties in accordance with the CentralNic Dispute Resolution Policy (the “CDRP Policy”).
On April 4, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 25, 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@oleina.ru.com. Also on April 4, 2022, 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 May 2, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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 the CDRP 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 CDRP Policy, CDRP 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.
PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS
In the instant proceedings, there are three Complainants. Paragraph 3(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark.
The Panel has reviewed the Complaint and is satisfied that that Oleina SA and Bunge CIS LLC are wholly-owned subsidiaries of Bunge Limited. This is sufficient to establish a sufficient nexus or link between the Complainants such that they should be treated as a single entity in this proceeding referred to in the singular, as “Complainant”.
A. Complainant
Complainant is an agricultural business that amongst other things supplies refined oils under the OLEINA mark. Complainant has rights in the OLEINA mark through its registrations with various national trade mark agencies (e.g. International Registration Reg. 705316, registered Dec 17, 1998, designating countries including Austria, Netherlands and the United Kingdom; Mexican Institute for Intellectual Property Reg. 143,873, registered Feb. 18, 2014). Respondent’s <oleina.ru.com> domain name is identical or confusingly similar to Complainant’s mark as it incorporates the mark in its entirety and adds the “.ru” country code top-level domain, along with the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <oleina.ru.com> domain name. Respondent is not commonly known by the Domain Name, nor has Complainant authorized or licensed Respondent to use its OLEINA 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 off as Complainant by reproducing the design and copyrighted material from Complainant’s official website at www.oleina.com (“Complainant’s Website”) and phishes for user information on the Domain Name’s resolving website (“Respondent’s Website”).
Respondent registered and uses the <oleina.ru.com> domain name in bad faith. Respondent registered and uses the Domain Name to pass off as Complainant. Respondent registered the Domain Name with actual knowledge of Complainant’s rights in the OLEINA mark. Respondent phishes for user information on the Respondent’s Website.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the OLEINA mark. The Domain Name is identical to Complainant’s OLEINA mark. Complainant has established that Respondent lacks rights or legitimate interests in the Domain Name and that Respondent registered and has used the Domain Name in bad faith.
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 or being used in bad faith.
The CDRP also requires that Complainant have participated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.
Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the CDRP Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.
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 rights in the OLEINA mark under Policy ¶ 4(a)(i) through its registration of the mark with the various national trade mark agencies (e.g. International Registration Reg. 705316, registered Dec. 17, 1998, designating countries including Austria, Netherlands and the United Kingdom; Mexican Institute for Intellectual Property Reg. 143,873, registered Feb. 18, 2014). Registration with multiple trademark agencies is generally sufficient in demonstrating rights in a mark under Policy ¶ 4(a)(i). See Alibaba Group Holding Limited v. YINGFENG WANG, FA 1568531 (Forum Aug. 21, 2014) (“Complainant has rights in the ALIBABA mark under the Policy through registration with trademark authorities in numerous countries around the world.”).
The Panel finds that the <oleina.ru.com> domain name is identical to the OLEINA mark as it merely adds the “.ru.com” TLD to Complainant’s wholly incorporated OLEINA mark. The addition of a top-level domain (“TLD”) is insufficient to distinguish a domain from a mark under Policy ¶ 4(a)(i). See Dansko, LLC v. zhang wu, FA 1757745 (Forum Dec. 12, 2017) (finding the <danskoshoes.us.com> domain name to be confusingly similar to the DANSKO mark under Policy ¶ 4(a)(i), despite the addition of the “.us” ccTLD and the “.com” gTLD); see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the Domain Name. In order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light. If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”). The Panel holds that Complainant has made out a prima facie case.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the OLEINA mark. Respondent has no relationship, affiliation, connection, endorsement or association with Complainant. WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged. See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also 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). The WHOIS lists “Andrei Veselov / Private Person” as registrant of record. Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii).
The Domain Name is presently inactive but prior to the commencement of the proceeding resolved to the Respondent’s Website which, through being almost an exact copy of Complainant’s Website (including reproducing the OLEINA mark and copyrighted photos of Complainant’s products), passes itself off as an official website of the Complainant for the purpose of offering to sell unauthorized versions of Complainant’s goods, in direct competition with Complainant’s merchandise. The use of a confusingly similar domain name to resolve to a webpage that directly offers unauthorized versions of a complainant’s goods or goods or services that directly compete with a complainant does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use; indeed it provides a false impression that the Respondent is affiliated with or authorized by Complainant. See BALENCIAGA SA v. ling lin, FA 1768542 (Forum Feb. 16, 2018) (“The disputed domain names incorporate Complainant's registered mark, and are being used for websites that prominently display Complainant's mark and logo, along with apparent images of Complainant's products, offering them for sale at discounted prices. The sites do not disclaim any connection with Complainant, and in fact seem to be designed to create an appearance of such a connection. Such use does not give rise to rights or legitimate interests.”). See also Am. Int’l Group, Inc. v. Busby, FA 156251 (Forum May 30, 2003) (finding that the respondent attempts to pass itself off as the complainant online, which is blatant unauthorized use of the complainant’s mark and is evidence that the respondent has no rights or legitimate interests in the disputed domain name).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that, at the time of registration of the Domain Name, December 7, 2021, Respondent had actual knowledge of Complainant’s OLEINA mark since the Respondent’s Website passes itself off as an official website of the Complainant and as such reproduces material from Complainant and makes repeated references to Complainant and its products. Furthermore, there is no obvious explanation, nor has one been provided, for an entity to register a domain name that wholly incorporates the OLEINA mark and use it to redirect visitors to a website selling goods in direct competition with the Complainant under the OLEINA mark other than to take advantage of Complainant’s reputation in the OLEINA mark. In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).
The Panel finds that Respondent registered and uses the Domain Name in bad faith to create confusion with Complainant’s OLEINA mark for commercial gain by using the confusingly similar Domain Name to resolve to a website that mimics Complainant’s Website and as a result purports to offer unauthorized versions of Complainant’s products in direct competition with the Complainant’s products. Using a confusingly similar domain name to trade upon the goodwill of a complainant can evince bad faith under Policy ¶ 4(b)(iv). See 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).”). See also Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where “Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing Internet users to a website that mimics Complainant’s own website in order to confuse users into believing that Respondent is Complainant or is otherwise affiliated or associated with Complainant.”).
The Panel while noting that the Policy only requires that a complainant show that a respondent registered or used a domain name at issue in bad faith, finds that the Respondent has registered and used the Domain Name in bad faith under Policy ¶ 4(a)(iii).
Having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <oleina.ru.com> domain name be TRANSFERRED from Respondent to Complainant.
Nicholas J.T. Smith, Panelist
Dated: May 3, 2022
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