The Mosaic Company v. Dalton Simeus
Claim Number: FA2306002049101
Complainant is The Mosaic Company (“Complainant”), represented by Nicholas S. Kuhlmann of Patterson Thuente IP, Minnesota, USA. Respondent is Dalton Simeus (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mosaicfertiliser.com>, registered with Google 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.
Paul M. DeCicco, as Panelist.
Complainant submitted a Complaint to Forum electronically on June 14, 2023; Forum received payment on June 14, 2023.
On June 15, 2023, Google LLC confirmed by e-mail to Forum that the <mosaicfertiliser.com> domain name is registered with Google LLC and that Respondent is the current registrant of the name. Google LLC has verified that Respondent is bound by the Google 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 June 20, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of July 10, 2023 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@mosaicfertiliser.com. Also on June 20, 2023, 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 July 18, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Paul M. DeCicco 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.
A. Complainant
Complainant contends as follows:
Complainant is a global leader in the crop nutrient industry. Mosaic mines, produces, and distributes millions of tons of high-quality fertilizer and animal feed ingredients each year.
Complainant asserts rights in the MOSAIC mark based upon registration with the United States Patent and Trademark Office (“USPTO”).
The <mosaicfertiliser.com> domain name is identical or confusingly similar to Complainant’s mark because the at-issue domain name wholly incorporates the MOSAIC mark with the addition of the term “fertiliser” and the generic top level domain (“gTLD”) “.com”.
Respondent has no legitimate interests in the <mosaicfertiliser.com> domain name. Respondent is not commonly known by the at-issue domain name and Complainant has not authorized or licensed Respondent any rights in the MOSAIC mark. Additionally, Respondent does not use the at-issue domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, the at-issue domain name resolves to a website containing no content. Further, Respondent has created a fraudulent actor who is impersonating an employee of Complainant to offer for sale competing products.
Respondent registered and uses the <mosaicfertiliser.com> domain name in bad faith. Respondent is impersonating Complainant. The at-issue domain name resolves to an inactive website. Lastly, Respondent is typosquatting.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has rights in the MOSAIC trademark.
Respondent is not affiliated with Complainant and had not been authorized to use Complainant’s trademark in any capacity.
Respondent registered the at‑issue domain names after Complainant acquired rights in the MOSAIC trademark.
Respondent uses the at-issue domain name to pass itself off as Complainant to swindle third parties via fraudulent email hosted by the <mosaicfertiliser.com> domain name.
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 at-issue domain is confusingly similar to a trademark in which Complainant has rights.
Complainant’s USPTO registration for MOSAIC establishes Complainant’s rights in a mark for the purposes of Policy 4(a)(i). See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
The at-issue domain name consists of Complainant’s entire MOSAIC trademark followed by the suggestive term “fertiliser” (British spelling of “fertilizer”), and with all followed by the “.com” top level domain name. The differences between Respondent’s domain name and Complainant’s trademark are insufficient to distinguish Respondent’s <mosaicfertiliser.com> domain name from Complainant’s trademark under Policy ¶ 4(a)(i). Therefore, the Panel finds that Respondent’s <mosaicfertiliser.com> domain name is confusingly similar to Complainant’s MOSAIC trademark. See 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.”).
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. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006). Since Respondent failed to respond, absent evidence of Policy ¶ 4(c) circumstances Complainant’s prima facie showing acts conclusively.
Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or legitimate interests in respect of the at-issue domain name. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018) (“lack of evidence in the record to indicate a respondent is authorized to use [the] complainant’s mark may support a finding that [the] respondent does not have rights or legitimate interests in the disputed domain name per Policy ¶ 4(c)(ii)”).
The WHOIS information for <mosaicfertiliser.com> reveals that “Dalton Simeus” is the domain name’s registrant and there is nothing in the record that suggests that Respondent is known by the at-issue domain name. Therefore, the Panel finds that Respondent is not commonly known by <mosaicfertiliser.com> under Policy ¶ 4(c)(ii). See PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”).
Respondent uses the <mosaicfertiliser.com> domain name to host emails that pretend to be from a sales professional employed by Complainant. The emails are part of Respondent’s scam to dupe third parties into believing they are purchasing products from Complainant when in fact Respondent is intent on swindling such third parties. Respondent’s use of the at-issue domain name to facilitate identity theft and fraud does not constitute a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor of a non-commercial or fair use under Policy ¶ 4(c)(iii). See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Given the forgoing, Complainant satisfies its initial burden and demonstrates Respondent’s lack of rights and lack of legitimate interests in respect of the at-issue domain name pursuant to Policy ¶ 4(a)(ii).
As discussed below without being exhaustive, bad faith circumstances are present which lead the Panel to conclude that Respondent acted in bad faith pursuant the Policy.
As mentioned above with regard to rights and legitimate interests, Respondent uses the at-issue domain name in connection with an email phishing scheme that is ultimately aimed at swindling funds from third parties. Respondent’s use of <mosaicfertiliser.com> to facilitate fraud shows Respondent’s bad faith registration and use of the <mosaicfertiliser.com> domain name under the Policy. See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that using the disputed domain name as an e-mail address to pass itself off as the complainant in a phishing scheme is evidence of bad faith registration and use); see also, Funding Circle Limited v. tim mcelwain / timmcelweain, FA 2003934 (Forum Aug. 4, 2022) (Respondent uses the at-issue domain name to facilitate [a] phishing scheme designed to swindle funds from Complainant’s customers. Such use of the confusingly similar domain name indicates Respondent’s bad faith under the Policy.).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mosaicfertiliser.com> domain name be TRANSFERRED from Respondent to Complainant.
Paul M. DeCicco, Panelist
Dated: July 19, 2023
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