Bunge Limited, Bunge SA and Bunge Deutschland GmbH v. globalsupplyltd john / Bunge
Claim Number: FA2211002018923
Complainant is Bunge Limited, Bunge SA and Bunge Deutschland GmbH (“Complainant”), represented by Renee Reuter, Missouri. Respondent is globalsupplyltd john / Bunge (“Respondent”), GB.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bungefood.com>, registered with Hostinger, UAB.
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 KC as Panelist.
Complainant submitted a Complaint to Forum electronically on November 3, 2022; Forum received payment on November 3, 2022.
On Nov 04, 2022, Hostinger, UAB confirmed by e-mail to Forum that the <bungefood.com> domain name is registered with Hostinger, UAB and that Respondent is the current registrant of the names. Hostinger, UAB has verified that Respondent is bound by the Hostinger, UAB 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 November 8, 2022, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 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@bungefood.com. Also on November 8, 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, Forum transmitted to the parties a Notification of Respondent Default.
On December 2, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
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.”
In the instant proceedings, there are three nominal Complainants and the question arises whether they are a “person or entity”. The three Complainants are 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.
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, and it will therefore treat them as a single entity in this proceeding. Nonetheless, throughout this decision, the Complainants will be collectively referred to as “Complainant.”
The matter may therefore 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 <bungefood.com> domain name is identical or confusingly similar to Complainant’s BUNGE mark as it incorporates the mark in its entirety while adding the generic term “food”, and the “.com” generic top-level domain (“gTLD”).
Respondent lacks rights and legitimate interests in the <bungefood.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 domain name in connection with any bona fide offering of goods or services, nor a legitimate non-commercial or fair use. Rather, Respondent use the disputed domain name to pass itself off as Complainant in furtherance of a phishing scheme.
Respondent registered and uses the <bungefood.com> domain name in bad faith. Respondent uses the confusingly similar nature of the disputed domain name to disrupt Complainant’s business by impersonating Complainant. Respondent used a privacy shield when registering the disputed domain name. Additionally, Respondent registered the disputed domain name with constructive or actual knowledge of Complainant’s rights in the mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company with international associated companies that are prominent suppliers 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 <bungefood.com> domain name on October 6, 2022.
4. Respondent has used the disputed domain name to pass itself off as Complainant in furtherance of a phishing scheme.
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 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 <bungefood.com> domain name is 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 a generic term and a gTLD. MTD Products Inc v J Randall Shank, FA 1783050 (Forum June 27, 2018) (“The disputed domain name is confusingly similar to Complainant’s mark as it wholly incorporates the CUB CADET mark before appending the generic terms ‘genuine’ and ‘parts’ as well as the ‘.com’ gTLD.”). Respondent’s <bungefood.com> domain name incorporates the BUNGE mark in its entirety while adding the generic word “food”, and the “.com” gTLD. As the Panel agrees, it finds Respondent’s domain name is confusingly similar to Complainant’s 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 generic word “food” to the mark;
(b) Respondent registered the domain name on October 6, 2022;
(c) Respondent has used the disputed domain name to pass itself off as Complainant in furtherance of a phishing scheme;
(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 <bungefood.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 “globalsupplyltd john / Bunge.” 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 argues that Respondent does not use the <bungefood.com> domain name for any bona fide offering of goods or services, nor for any legitimate non-commercial or fair use. It is neither a bona fide offer nor a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii) when the holder of a domain name, confusingly similar to a registered mark, attempts to profit by passing itself off as the complainant. See Kmart of Mich., Inc. v. Cone, FA 655014 (Forum Apr. 25, 2006) (The panel found the respondent’s attempt to pass itself of as the complainant was not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii) when the respondent used the disputed domain name to present users with a website that was nearly identical to the complainant’s website). Here, Respondent uses the disputed domain name in order to pass itself off as Complainant by featuring Complainant’s registered trademark and Complainant’s own legitimate webpage content throughout the resolving webpage. Compare Compl. Ex. C with Compl. Ex. D. As the Panel finds that Respondent uses the <bungefood.com> domain name in order to impersonate Complainant, it finds that Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate non-commercial or fair use within the meaning of Policy ¶¶ 4(c)(i) and (iii);
(g) Complainant argues that Respondent uses the <bungefood.com> domain name in furtherance of a phishing scheme, which does not qualify as a bona fide offering of goods or services, nor a legitimate non-commercial or fair use. Phishing has been defined by past panels as a practice that defrauds Internet users by convincing them to share valuable personal information through the use of emails, pop-ups, or other methods. See Juno Online Servs., Inc. v. Iza, FA 245960 (Forum May 3, 2004) (defining “phishing” as “the use of e-mails, pop-ups or other methods to trick Internet users into revealing credit card numbers, passwords, social security numbers and other personal information that may be used for fraudulent purposes”). Additionally, use of a domain name to facilitate a phishing scheme by impersonating a complainant cannot be described as either a bona fide offering of goods or services, nor or a legitimate non-commercial or fair use. See Capital One Fin. Corp. v. Howel, FA 289304 (Forum Aug. 11, 2004) (concluding that using a domain name to redirect Internet users to a website that imitated the complainant’s credit application website and attempted to fraudulently acquire personal information from the complainant’s clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use). Here, Complainant contends that Respondent uses the disputed domain name’s resolving website to mimic Complainant’s own website in order to encourage users to share their valuable personal information. See Compl. Ex. C. As the Panel agrees, it finds Respondent is not using the disputed domain name for any bona fide offer 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 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 argues that Respondent registered and used the <bungefood.com> domain name to attract Internet users with a false impression of association with Complainant. Past panels have found bad faith pursuant to Policy ¶ 4(b)(iv) when a respondent used a confusingly similar domain name to attract Internet users. See G.D. Searle & Co. v. Celebrex Drugstore, FA 123933 (Forum Nov. 21, 2002) (finding that the respondent registered and used the domain name in bad faith pursuant to Policy ¶ 4(b)(iv) because the respondent was using the confusingly similar domain name to attract Internet users to its commercial website). Additionally, use of a disputed domain name to impersonate a Complainant supports a finding of bad faith registration and use. See Russell & Bromley Limited v. Li Wei Wei, FA 1752021 (Forum Nov. 17, 2017) (finding the respondent registered and used the at-issue domain name in bad faith because it used the name to pass off as the complainant and offer for sale competitive, counterfeit goods). The Panel recalls Complainant’s attached screenshots of the disputed domain name, which feature Complainant’s mark and copy content from Complainant’s own webpage. Compare Compl. Ex. C with Compl. Ex. D. Respondent also incorporates Complainant’s BUNGE mark in the disputed domain name, presumably to attract and divert Internet users. As the Panel agrees, it finds that Respondent registered and uses the <bungefood.com> domain name in bad faith pursuant to Policy ¶ 4(b)(iv).
Secondly, Complainant asserts that Respondent registered the <bungefood.com> domain name with constructive and/or actual knowledge of Complainant’s rights in the BUNGE mark. The Panel will disregard arguments of bad faith based on constructive notice as prior UDRP decisions generally decline to find bad faith as a result of constructive knowledge. See Orbitz Worldwide, LLC v. Domain Librarian, FA 1535826 (Forum Feb. 6, 2014) (“The Panel notes that although the UDRP does not recognize ‘constructive notice’ as sufficient grounds for finding Policy ¶ 4(a)(iii) bad faith, the Panel here finds actual knowledge through the name used for the domain and the use made of it.”). However, actual notice may be determined by looking at the respondent’s specific use of the mark, such as to impersonate the complainant. See Pfizer, Inc. v. Suger, D2002-0187 (WIPO Apr. 24, 2002) (finding that because the link between the complainant’s mark and the content advertised on the respondent’s website was obvious, the respondent “must have known about the Complainant’s mark when it registered the subject domain name”). Here, Complainant contends that Respondent had actual knowledge of Complainant’s rights in the BUNGE mark because Respondent incorporated Complainant’s BUNGE mark in the disputed domain name in order to attract users by giving a false impression of association with Complainant. Further, Respondent uses the disputed domain name in order to impersonate Complainant and phish for user information through the resolving webpage. Compare Compl. Ex. C with Compl. Ex. D. As the Panel agrees, it finds Respondent had actual knowledge of Complainant’s rights in the BUNGE mark under Policy ¶ 4(a)(iii).
Thirdly, Complainant notes that Respondent appears to have registered the disputed domain name using a privacy shield. Use of false or misleading WHOIS information, including the use of a privacy shield, suggests bad faith registration and use. See Phoenix Niesley-Lindgren Watt v. Contact Privacy Inc., Customer 0150049249, FA 1800231 (Forum Sep. 6. 2018) (“In a commercial context, using a WHOIS privacy service raises the rebuttable presumption of bad faith registration and use of the disputed domain name. An honest merchant in the marketplace does not generally try to conceal the merchant’s identity. Good faith requires honesty in fact. Respondent did nothing to rebut this presumption of bad faith. Therefore, the Panel will find bad faith registration and use for this reason.”). Here, the Complainant provides evidence that Respondent makes use of a privacy shield. See Registrar Verification Email; see also Compl. Ex. A. Thus, as the Panel agrees, it finds Respondent registered and uses the disputed domain name in bad faith.
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 <bungefood.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown KC
Panelist
Dated: December 3, 2022
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