DECISION

 

J.R. Simplot Company v. David Mozard

Claim Number: FA2402002085121

 

PARTIES

Complainant is J.R. Simplot Company ("Complainant"), represented by Jeanette Eriksson of FairWinds Partners LLC, District of Columbia, USA. Respondent is David Mozard ("Respondent"), Canada.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <simplod.com>, registered with NameCheap, Inc.

 

PANEL

The undersigned certifies that they have acted independently and impartially and to the best of their knowledge have no known conflict in serving as Panelist in this proceeding.

 

Richard Hill as Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on February 22, 2024; Forum received payment on February 22, 2024.

 

On February 22, 2024, NameCheap, Inc. confirmed by e-mail to Forum that the <simplod.com> domain name is registered with NameCheap, Inc. and that Respondent is the current registrant of the name. NameCheap, Inc. has verified that Respondent is bound by the NameCheap, Inc. 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 February 23, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 14, 2024 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@simplod.com. Also on February 23, 2024, 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 March 15, 2024, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Richard Hill 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.

 

RELIEF SOUGHT

Complainant requests that the domain name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant states that it was founded in 1929 and is headquartered in Boise, Idaho, in the United States. Beginning with the sale of dehydrated onions and potatoes and moving on to the world's first marketable frozen French fries, corn, peas, and other vegetables, Complainant has grown to become one of the world's largest privately held agricultural businesses selling products under the trademark SIMPLOT as well as many other brand names. For example, it supplies more than half of all French fries to the McDonald's restaurant chain and also produces fertilizers for agricultural applications. The company currently has more than 13,000 employees and operates in many countries around the world. Complainant asserts rights in the SIMPLOT mark through its registration in the United States in 1965.

 

Complainant alleges that the disputed domain name is identical or confusingly similar to its SIMPLOT mark because it consists of a misspelling of the mark (let letter "t" is replaced with the letter "d"), merely adding the ".com" generic top-level domain ("gTLD"). Complainant cites UDRP precedents to support its position.

 

According to Complainant, Respondent has no rights or legitimate interests in the disputed domain name. Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme; the signature block of the fraudulent emails displays Complainant's mark and distinctive logo. In addition, the disputed domain name resolves to a parked page that displays advertising links to unrelated products. Complainant cites UDRP precedents to support its position.

 

Further, says Complainant, Respondent registered and uses the disputed domain name in bad faith. The resolving website displays advertising hyperlinks for unrelated products. Respondent uses the disputed domain name to engage in a fraudulent email phishing scheme. Respondent registered the disputed domain name with actual knowledge of Complainant's rights in the SIMPLOT mark. Complainant cites UDRP precedents to support its position.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has registered trademark rights for the mark SIMPLOT and uses it to provide agricultural products. The mark was registered in 1965.

 

Complainant has not licensed or otherwise authorized Respondent to use its mark.

 

The disputed domain name was registered in 2023.

 

Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme; the signature block of the fraudulent emails displays Complainant's mark and distinctive logo. The resolving website displays advertising links to products that are not related to those of Complainant.

 

DISCUSSION

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and 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").

 

Identical and/or Confusingly Similar

The disputed domain name consists of a misspelling of Complainant's SIMPLOT mark (the letter "t" is replaced with the letter "d"), with the mere addition of the generic top-level domain name ("gTLD") ".com". Such changes are insufficient to overcome confusing similarity between a domain name and a mark per Policy ¶ 4(a)(i). See Belkin Components v. Gallant, FA 97075 (Forum May 29, 2001) (finding the <belken.com> domain name confusingly similar to the complainant's BELKIN mark because the name merely replaced the letter "i" in the complainant's mark with the letter "e"); see also Jerry Damson, Inc. v. Tex. Int'l Prop. Assocs., FA 916991 (Forum Apr. 10, 2007) ("The mere addition of a generic top-level domain ("gTLD") ".com" does not serve to adequately distinguish the Domain Name from the mark."). Thus the Panel finds that the disputed domain name is confusingly similar to Complainant's mark under Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant has not licensed or otherwise authorized Respondent to use its mark. Respondent is not commonly known by the disputed domain name: under Policy ¶ 4(c)(ii), WHOIS information may be used to determine whether a respondent is commonly known by the disputed domain name. See Amazon Technologies, Inc. v. LY Ta, FA 1789106 (Forum June 21, 2018) (concluding a respondent has no rights or legitimate interests in a disputed domain name where the complainant asserted it did not authorize the respondent to use the mark, and the relevant WHOIS information indicated the respondent is not commonly known by the domain name). Here, the WHOIS information for the disputed domain name lists the registrant as "David Mozard". Therefore the Panel finds that Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii).

 

Complainant presents evidence showing that Respondent used the disputed domain name in furtherance of a fraudulent email phishing scheme. Use of a domain name in a phishing scheme is not a bona fide offering of goods or services per Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use of a domain name per Policy ¶ 4(c)(iii). See Enterprise Holdings, Inc. v. I S / Internet Consulting Services Inc., FA 1785242 (Forum June 5, 2018) ("On its face, the use of a domain name that is confusingly similar to the mark of another in order to facilitate a phishing scheme cannot be described as either a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶4(c)(iii)."); see also Home Depot Product Authority, LLC v. Domain Owner / Knowbe4, FA 1990823 (Forum May 25, 2022) ("Using a domain name to gain commercially through a fraudulent email scam is neither a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use as contemplated by Policy ¶ 4(c)(iii)."). Thus the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) and 4(c)(iii)).

 

Further, the resolving website displays advertising hyperlinks for products that are not related to those of Complainant. Use of a domain name to redirect users to unrelated third-party sites (whether or not they compete with Complainant) is not a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Constellation Wines U.S., Inc. v. Tex. Int'l Prop. Assocs., FA 948436 (Forum May 8, 2007) (finding that the respondent had no rights or legitimate interests under Policy ¶¶ 4(c)(i) or 4(c)(iii) by using the disputed domain name to operate a website featuring links to goods and services unrelated to the complainant). For this reason also, the Panel finds that Respondent fails to use the disputed domain name to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶ 4(c)(i) and 4(c)(iii)).

 

For all the above reasons, the Panel finds that Respondent does not have rights or legitimate interests in the disputed domain name.

 

Registration and Use in Bad Faith

Respondent has not presented any plausible explanation for its use of Complainant's mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent's failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.

 

Indeed, as already noted, Respondent uses the disputed domain name in furtherance of a fraudulent email phishing scheme. Use of a domain name in a phishing scheme can show registration and use in bad faith per Policy ¶ 4(a)(iii). 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 National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Forum Sept. 22, 2014) (finding bad faith where respondent fraudulently attempted to induce wire transfers by sending e-mails purporting to be from complainant's President and CEO). Thus the Panel finds that Respondent registered and uses the disputed domain name in bad faith per Policy ¶ 4(a)(iii).

 

Further, also as already noted, the resolving website promotes products and services unrelated to Complainant's business. Such use of a domain name can demonstrate a respondent's bad faith per Policy ¶ 4(b)(iv). See Allianz of Am. Corp. v. Bond, FA 680624 (Forum June 2, 2006) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was diverting Internet users searching for the complainant to its own website and likely profiting); see also Fossil, Inc. v. wwwfossil-watch.org c/o Hostmaster, Case No. FA 335513 (Forum Nov. 9, 2004) (finding bad faith where respondent attempted to profit from the fame of complainant's trademark by attracting internet traffic to his website); see also Tumblr, Inc. v. Ailing Liu, FA 1543807 (Forum Mar. 24, 2014) ("Bad faith use and registration exists under Policy ¶ 4(b)(iv) where a respondent uses a confusingly similar domain name to resolve to a website featuring links and advertisements unrelated to complainant's business and respondent is likely collecting fees."). The Panel therefore finds that Respondent has registered and used the domain name in bad faith per Policy ¶ 4(b)(iv) on this ground also.

 

In addition, Respondent registered the disputed domain name with actual knowledge of Complainant's mark: the signature block of the fraudulent emails displays Complainant's mark and distinctive logo. While constructive notice is insufficient to demonstrate bad faith, actual knowledge of a complainant's rights in a mark prior to registration may be evidence of bad faith per Policy ¶ 4(a)(iii). See Custom Modular Direct LLC v. Custom Modular Homes Inc., FA 1140580 (Forum Apr. 8, 2008) ("There is no place for constructive notice under the Policy."); see also 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."); see also Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name). The Panel finds that Respondent had actual knowledge of Complainant's rights in the mark prior to Respondent's registration of the disputed domain name and that this constitutes bad faith under Policy ¶ 4(a)(iii).

 

Finally, by merely replacing the letter "t" with the letter "d" in Complainant's mark, Respondent engages in typosquatting. A finding of typosquatting can evince bad faith under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA 1610020 (Forum May 1, 2015) ("Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii)."). As such, the Panel finds bad faith typosquatting under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <simplod.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

Richard Hill, Panelist

Dated: March 16, 2024