Bunge Limited, Bunge SA and Bunge Deutschland GmbH v. Ildar Nemezhanov
Claim Number: FA2208002009010
Complainant is Bunge Limited, Bunge SA and Bunge Deutschland GmbH (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is Ildar Nemezhanov (“Respondent”), RU.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bunge-pro.com>, 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.
The Honorable Neil Anthony Brown QC as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 18, 2022; the Forum received payment on August 18, 2022. The Complaint was received in both Russian and English.
On Aug 19, 2022, Registrar of Domain Names REG.RU LLC confirmed by e-mail to the Forum that the <bunge-pro.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 ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 25, 2022, the Forum served the Russian language Complaint and all Annexes, including a Russian language Written Notice of the Complaint, setting a deadline of September 14, 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-pro.com. Also on August 25, 2022, the Russian 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 September 21, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed The Honorable 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.
Preliminary Issue: Language of the Proceeding
The Panel notes that the Registration Agreement is written in the Russian language, thereby making the language of the proceedings to be Russian.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Russian language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
Preliminary Issue: Multiple Complainants
There are three Complainants in this matter: Bunge Limited, Bunge SA, and Bunge Deutschland GmbH. Complainant contends that Bunge Limited, Bunge SA, and Bunge Deutschland GmbH are all related companies and that Bunge Limited is the parent of the various Bunge subsidiary company. Additionally, Bunge SA and Bunge Deutschland GmbH are wholly indirectly owned by Bunge Limited.
The relevant rules governing multiple complainants are UDRP Rule 3(a) and the Forum’s Supplemental Rule 1(e). UDRP Rule 3(a) states, “Any 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. But see AmeriSource Corp. v. Park, FA 99134 (Forum Nov. 5, 2001) (“This Panel finds it difficult to hold that a domain name that may belong to AmerisourceBergen Corporation (i.e., the subject Domain Names) should belong to AmeriSource Corporation because they are affiliated companies.”).
The Panel accepts that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants. Accordingly, it will treat them all as a single entity in this proceeding and the proceeding may go forward on that basis.
A. Complainant
Complainant made the following contentions.
Complainant is a supplier of oil for business customers, manufacturers, bakeries, restaurants, and foodservice operators. Complainant has rights in the BUNGE mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,036,787, registered on Feb. 11, 1997). See Compl. Ex. B. Respondent’s <bunge-pro.com> domain name is identical or confusingly similar to Complainant’s BUNGE mark as it incorporates the mark in its entirety while adding the letters “pro”, a hyphen, and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <bunge-pro.com> domain name. Respondent is not commonly known by the disputed domain name, nor has Complainant authorized or licensed Respondent to use its BUNGE mark in the disputed domain name. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead diverts users to its resolving website.
Respondent registered and uses the <bunge-pro.com> domain name in bad faith. Respondent fails to make active use of the domain name. Additionally, Respondent registered the disputed domain name with constructive 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 the supply of oil for business customers, manufacturers, bakeries, restaurants, and foodservice operators.
2. Complainant has established its rights in the BUNGE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g. Reg. No. 2,036,787, registered on Feb. 11, 1997).
3. Respondent registered the <bunge-pro.com> domain name on January 19, 2022.
4. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for a legitimate noncommercial or fair use, but instead diverts internet users to its resolving website.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the BUNGE mark through its registration of the mark with the USPTO (e.g. Reg. No. 2,036,787, registered on Feb. 11, 1997). See Compl. Ex. B. Registration with the USPTO is generally sufficient in demonstrating rights in a mark under Policy ¶ 4(a)(i). See Brooks Sports, Inc. v. Joyce Cheadle, FA 1819065 (Forum Dec. 28, 2018) (finding that Complainant’s registration of the BROOKS mark with the USPTO sufficiently conferred its rights in the mark under Policy ¶ 4(a)(i).”). Thus, since Complainant registered its mark with the USPTO, the Panel finds Complainant has rights in the mark under Policy ¶ 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s BUNGE mark. Complainant argues that Respondent’s <bunge-pro.com> domain name is identical or confusingly similar to Complainant’s BUNGE mark. Under Policy ¶ 4(a)(i), a domain name is generally considered confusingly similar to the mark it incorporates where it adds letters, a hyphen, and the “.com” gTLD. See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”); see also ADP, LLC. v. Ella Magal, FA 1773958 (Forum Aug, 2, 2017) (“Respondent’s <workforce-now.com> domain name appropriates the dominant portion of Complainant’s ADP WORKFORCE NOW mark and adds a hyphen and the gTLD “.com.” These changes do not sufficiently distinguish the disputed domain name from the ADP WORKFORCE NOW mark.”). The disputed domain name incorporates the mark in its entirety while adding the letters “pro”, a hyphen, and the “.com” gTLD. As the Panel agrees, it finds Respondent’s domain name is identical or confusingly similar to Complainant’s BUNGE mark under Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
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 mark and to use it in its domain name adding only the letters “pro” and a hyphen to the mark;
(b) Respondent registered the domain name on January 19, 2022;
(c) Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for a legitimate noncommercial or fair use, but instead diverts internet users to its resolving website;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant argues that Respondent is not commonly known by the <bunge-pro.com> domain name. Where a response is lacking, WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See Google Inc. v. Domain Admin / Whois Privacy Corp., FA1502001605239 (Forum Mar. 22, 2015) (“WHOIS information for the at-issue domain name lists ‘Domain Admin / Whois Privacy Corp.’ as the domain name’s registrant and there is nothing in the record that otherwise suggests Respondent is commonly known by the <google-status.com> domain name. Therefore, the Panel finds that Respondent is not commonly known by the at-issue domain name pursuant to Policy ¶ 4(c)(ii).”). Additionally, lack of authorization to use a complainant’s mark may indicate that the respondent is not commonly known by the disputed domain name. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The WHOIS information identifies Respondent as “Ildar Nemezhanov.” See Registrar Verification Email. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii);
(f) Complainant contends that Respondent is not using the <bunge-pro.com> domain name for any bona fide offering of goods or services, nor a legitimate noncommercial or fair use, but instead diverts users to its resolving website. Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for a legitimate noncommercial or fair use, but instead diverts internet users to its website. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to divert internet users to a respondent’s resolving website is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Forum Sept. 30, 2003) (“Respondent’s demonstrated intent to divert Internet users seeking Complainant’s website to a website of Respondent and for Respondent’s benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). Complainant provides a screenshot of the disputed domain name’s resolving website, which redirects users to a holding or index page. See Compl. Pg. 9. As the Panel agrees, it finds Respondent is not using the disputed domain name for any bona fide offering of goods or services, nor a 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 does not have a right or legitimate interest 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 submits that Respondent registered and uses the disputed domain name in bad faith per Policy 4(a)(iii). When a complainant asserts bad faith under Policy ¶ 4(a)(iii),but does not rely on any the criteria set out not Policy ¶ 4(b), the Panel may look at the totality of the circumstances to establish bad faith. See Cellular One Group v. Brien, D2000-0028 (WIPO Mar. 10, 2000) (finding that the criteria specified in 4(b) of the Policy is not an exhaustive list of bad faith evidence).
Secondly, Complainant contends that Respondent registered and uses the <bunge-pro.com> domain name in bad faith by failing to make an active use of the domain name. Under Policy ¶ 4(a)(iii), failure to make active use of a domain name is evidence of bad faith registration and use. See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”). The Panel has noted the screenshot of the disputed domain name’s resolving website, which redirects users to a holding or index page. See Compl. Pg. 9. As the Panel agrees, it finds Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(a)(iii).
Thirdly, Complainant argues that Respondent registered and uses the <bunge-pro.com> domain name with constructive knowledge of Complainant’s rights in the BUNGE mark. While past panels have found that constructive notice is not sufficient for a finding of bad faith under Policy ¶ 4(a)(iii), actual notice is sufficient for a finding of bad faith. See Deep Foods, Inc. v. Jamruke, LLC, FA 648190 (Forum Apr. 10, 2006) (stating that while mere constructive knowledge is insufficient to support a finding of bad faith, where the circumstances indicate that the respondent had actual knowledge of the complainant's mark when it registered the domain name, panels can find bad faith); see also Yahoo! Inc. v. Butler, FA 744444 (Forum Aug. 17, 2006) (finding bad faith where the respondent was "well-aware of the complainant's YAHOO! mark at the time of registration"). Here, although Complainant does not argue Respondent had actual notice of Complainant’s rights in the mark, it does assert its longstanding use of the mark which contributes to a finding of actual knowledge. As the Panel finds Respondent had actual knowledge of Complainant’s rights in the BUNGE mark, the Panel finds bad faith registration and use of the domain name under Policy ¶ 4(a)(iii).
Fourthly, in addition and having regard to the totality of the evidence, the Panel
finds that, in view of Respondent’s registration of the disputed domain name using the BUNGE mark and in view of the conduct that Respondent has
engaged in when using the domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
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 <bunge-pro.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown QC
Panelist
Dated: October 5, 2022
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