DECISION

 

The Mosaic Company v. Kuichuan Wang

Claim Number: FA2407002108482

PARTIES

Complainant is The Mosaic Company ("Complainant"), represented by Nicholas S. Kuhlmann of Husch Blackwell LLP, Minnesota, USA. Respondent is Kuichuan Wang ("Respondent"), China.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <mosaicco-invest.com>, registered with Cosmotown, Inc..

 

PANEL

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.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on July 29, 2024; Forum received payment on July 29, 2024.

 

On July 30, 2024, Cosmotown, Inc. confirmed by e-mail to Forum that the <mosaicco-invest.com> domain name is registered with Cosmotown, Inc. and that Respondent is the current registrant of the name. Cosmotown, Inc. has verified that Respondent is bound by the Cosmotown, 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 August 5, 2024, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 26, 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@mosaicco-invest.com. Also on August 5, 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 August 27, 2024, 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.

 

RELIEF SOUGHT

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

 

PARTIES' CONTENTIONS

A. Complainant

Complainant contends in part as follows:

 

Complainant Mosaic is a well-known Fortune 500 company publicly traded since 2004. 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's owns USPTO registrations for it MOSAIC trademark.

 

Respondent's at-issue domain name is confusingly similar to a trademark in which Complainant has rights as the at-issue domain name wholly incorporates Complainant's well-known MOSAIC trademark merely adding the word "invest."

 

Respondent lacks rights and legitimate interests in respect of the at-issue domain name. An individual registered the domain name <mosaicco-invest.com>, created a subdomain (m.mosaicco-invest.com) associated with the <mosaicco-invest.com>  and used that subdomain to falsely purport to provide direct investment opportunities in Complainant's stock by creating a platform where individual fraud victims have deposited funds in pursuit of that investment opportunity. That platform bears counterfeit copies of Complainant's marks to perpetuate the fraudulent investment scheme by creating the appearance that the fraudulent actor (namely, the Respondent) is affiliated with Complainant, when in fact there is no connection. Complainant does not offer a direct purchase program. Rather, Mosaic common stock is publicly traded on the New York Stock Exchange under the ticker symbol "MOS". Prospective "investors" who had deposited funds using the fraudulent platform were unable to withdraw those funds in April 2024. Mosaic has learned of multiple instances where other fraudulent domains have been utilized to deceive prospective customers who actually have made payment, but never received shipment of goods, and Complainant wants to prevent such use of the at-issue domain name. Respondent is not making any legitimate use of the website at <mosaicco-invest.com>, as there is no content on the website. Respondent has no relationship whatsoever with Complainant. Complainant Mosaic has never authorized Respondent's use of the Complainant's trademarks, and Respondent is not a licensee of Complainant.

 

Respondent registered and used the at-issue domain name in bad faith. Respondent inactive use of the at-issue domain name demonstrates bad faith per Policy ¶ 4(a)(iii). The near identity of the domain name to Complainant's official website and mosaicco.com indicates a bad faith attempt to confuse and misdirect users seeking Complainant's official website.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant has rights in the MOSAIC trademark.

 

Respondent is not affiliated with Complainant and had not been authorized to use Complainant's trademarks in any capacity.

 

Respondent registered the at‑issue domain name after Complainant acquired rights in the MOSAIC trademark.

 

Respondent registered and used the at-issue domain name to pass itself off as Complainant so Respondent might swindle third parties via a fraudulent investment scheme concerning Complainant's stock. Respondent now holds the domain name passively.

 

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 at-issue domain name is similar to a trademark in which Complainant has rights.

 

Complainant shows that it has USPTO registrations for its MOSAIC trademark. Such registrations are each sufficient to demonstrate Complainant's rights in a mark under Policy ¶ 4(a)(i). See Microsoft Corp. v. Burkes, FA 652743 (Forum Apr. 17, 2006) ("Complainant has established rights in the MICROSOFT mark through registration of the mark with the USPTO.").

 

Respondent's <mosaicco-invest.com> domain name incorporates Complainant's MOSAIC trademark followed by the letters "co" a likely abbreviation for "company" or "corporation," a hyphen and the suggestive term "invest" with all followed by the ".com" top-level domain name. The differences between Respondent's domain name and Complainant's MOSAIC trademark are insufficient to distinguish Respondent's domain name from Complainant's mark for the purposes of Policy ¶ 4(a)(i). Therefore, the Panel concludes that Respondent's <mosaicco-invest.com> domain name is confusingly similar to Complainant's MOSAIC trademark. See Wiluna Holdings, LLC v. Edna Sherman, FA 1652781 (Forum Jan. 22, 2016) (finding the addition of a generic term and gTLD is insufficient in distinguishing a disputed domain name from a mark under Policy ¶ 4(a)(i)).  Notably, the domain is also remarkably similar to Complainant's official website's domain name -mosaicco.com.

 

Rights or Legitimate Interests

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).

 

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.

 

The WHOIS information for the at-issue domain name identifies the domain name's registrant as "Kuichuan Wang" and the record before the Panel contains no evidence that tends to prove that Respondent is commonly known by <mosaicco-invest.com>. The Panel therefore concludes that Respondent is not commonly known by the at-issue domain name for the purposes of Policy ¶ 4(c)(ii). See Coppertown Drive-Thru Sys., LLC v. Snowden, FA 715089 (Forum July 17, 2006) (concluding that the respondent was not commonly known by the <coppertown.com> domain name where there was no evidence in the record, including the WHOIS information, suggesting that the respondent was commonly known by the disputed domain name).

 

Respondent used the <mosaicco-invest.com> domain name to pass itself off as Complainant. After being directed to a subdomain of <mosaicco-invest.com> website visitors were presented with a site displaying Complainant's trademark and logo. Respondent's <mosaicco-invest.com> website was setup to look and act like a trading platform for MOSAIC stock sponsored by Complainant. There, interested parties could make direct investments in Complainant's stock. It appears that multiple third parties using the website were defrauded into giving up funds to Respondent. Respondent's victims deposited funds via the <mosaicco-invest.com> website but were thereafter unable to withdraw those funds. Respondent's use of the domain name in this manner constitutes neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where "Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing internet users to a website that mimics Complainant's own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant."); 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.")

 

Currently, Respondent's <mosaicco-invest.com> domain name is not linked to an active website. In browsing to the domain name an error message is returned stating in part that: "This site can't be reached." Respondent's passive holding of the at-issue domain name is not indicative of 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 CrossFirst Bankshares, Inc. v Yu-Hsien Huang, FA 1785415 (Forum June 6, 2018) ("Complainant demonstrates that Respondent fails to actively use the disputed domain name as it resolves to an inactive website. Therefore, the Panel finds that Respondent fails to actively use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶ 4(c)(i) or (iii).").

 

Given the forgoing, the Panel finds that Respondent lacks rights and legitimate interests in <mosaicco-invest.com>.

 

Registration and Use in Bad Faith

As discussed below without being exhaustive, bad faith circumstances are present from which the Panel concludes that Respondent registered and used the at-issue domain name in bad faith pursuant to the Policy.

 

First and as discussed above regarding rights and legitimate interests, Respondent registered and used the <mosaicco-invest.com> domain name to pass itself off as Complainant to facilitate financial fraud. This foul use of the domain name demonstrates Respondent's bad faith registration and use under the Policy. See Bittrex, Inc. v. Wuxi Yilian LLC, FA 1760517 (Forum Dec. 27, 2017) (finding bad faith per Policy ¶ 4(b)(iv) where "Respondent registered and uses the <lbittrex.com> domain name in bad faith by directing internet users to a website that mimics Complainant's own website in order to confuse users into believing that Respondent is Complainant, or is otherwise affiliated or associated with Complainant."); 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.")

 

Next, Respondent currently holds the at-issue domain name passively. Doing so further shows Respondent's bad faith. See CommScope, Inc. of North Carolina v. Zhuang Yan / WANGYONG, FA 1764026 (Forum Feb. 14, 2018) ("Respondent's domain names do not have resolving websites. Using a domain name to resolve to an inactive website (or no website at all) indicates bad faith registration and use.").

 

Moreover, Respondent had actual knowledge of Complainant's rights in the MOSAIC mark when Respondent registered <mosaicco-invest.com>. Respondent's actual knowledge is evident from the notoriety of Complainant's trademark and from Respondent's use of the domain name to pass itself off as Complainant to facility fraud. Respondent's registration of the confusingly similar domain name while having knowledge of Complainant's trademark rights in MOSAIC shows Respondent's bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had actual knowledge of Complainant's mark when registering the disputed domain name); 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).

 

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 <mosaicco-invest.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

 

 

Paul M. DeCicco, Panelist

Dated: August 28, 2024