Bunge Limited, Bunge SA and Bunge Deutschland GmbH v. eric ochoki
Claim Number: FA2208002009194
Complainant is Bunge Limited, Bunge SA and Bunge Deutschland GmbH (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is eric ochoki (“Respondent”), Kenya.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bunge-group.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.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 19, 2022. The Forum received payment on August 19, 2022.
On August 23, 2022, NetEarth One Inc. d/b/a NetEarth confirmed by e-mail to the Forum that the <bunge-group.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 August 24, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of September 13, 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 firstname.lastname@example.org. Also on August 24, 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 September 21, 2022, pursuant to Complainant's 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.
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 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 and Bunge Deutschland GmbH 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-group.com> domain name listed in the Complaint. The Panel will refer to them collectively as “Complainant”.
Complainant is global leader in oil for business customers and a supplier of choice for food manufacturers, bakeries, restaurants and foodservice operators. Complainant has rights in the BUNGE mark through registrations of the mark including with the United States Patent and Trademark Office (“USPTO”). Respondent’s <bunge-group.com> domain name is virtually identical and confusingly similar to Complainant’s mark. Complainant operates a website at “www.bunge.com”.
Respondent has no rights or legitimate interests in the <bunge-group.com> domain name. Respondent is not commonly known by the domain name and Complainant has not authorized or licensed to Respondent any rights in the BUNGE mark. Additionally, Respondent does not use the domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the domain name resolves a webpage displaying no content. Clearly, the domain name was registered with intent to be used by Respondent to impersonate and allow the Registrant to pass itself off as Complainant.
Respondent registered the <bunge-group.com> domain name in bad faith with knowledge of Complainant’s rights in the BUNGE mark in order to disrupt Complainant’s business and divert customers for commercial gain.
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it 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 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 shown that it has rights in the BUNGE mark through registrations of the mark with the USPTO (e.g., Reg. No. 4,643,986 registered November 25, 2014). The Panel finds Respondent’s <bunge-group.com> domain name to be virtually identical and confusingly similar to Complainant’s mark because it incorporates the BUNGE mark in its entirety and adds the term “group” and a hyphen, which do nothing to distinguish the domain name from the mark, and the inconsequential “.com” generic top-level domain (“gTLD”), which may be ignored.
Complainant has established this element.
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by Respondent, shall demonstrate rights to or legitimate interests in the domain name for purposes of paragraph 4(a)(ii) of the Policy, i.e.
(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-group.com> domain name was registered on June 27, 2022, many years after Complainant has shown that its BUNGE mark had become very well-known. It resolves to a webpage stating: “Error establishing a database connection”.
These circumstances, together with Complainant’s 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 it does have rights or legitimate interests in the <bunge-group.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.
Complainant has 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, i.e.
(i) circumstances indicating that Respondent has registered or acquired the domain name primarily for the purpose of selling, renting or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of Complainant, for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) Respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that Respondent has engaged in a pattern of such conduct;
(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.
In light of the very well-known nature of the BUNGE mark and the natural association with Complainant arising from the use of the word “group” in the domain name, the Panel cannot conceive of any plausible good faith use that can be made of the domain name without the consent of Complainant. Further, in the absence of a Response, Complainant’s assertion that the domain name was registered with intent to be used by Respondent to impersonate and allow the Registrant to pass itself off as the Complainant in unchallenged.
Accordingly, taking all the circumstances of this case into account, the Panel is satisfied that Respondent was fully aware of Complainant’s very well-known BUNGE mark when Respondent registered the <bunge-group.com> domain name and that Respondent did so primarily for the purpose of disrupting the business of Complainant. This demonstrates registration and use in bad faith under Policy ¶ 4(b)(iii).
Complainant has established this element.
Complainant 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-group.com> domain name be TRANSFERRED from Respondent to Complainant Bunge Limited.
Alan L. Limbury, Panelist
Dated: September 22, 2022
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