BRF S.A., f/k/a BRF - Brasil Foods S.A. v. Sasha Antonic
Claim Number: FA1410001586098
Complainant is BRF S.A., f/k/a BRF - Brasil Foods S.A. (“Complainant”), represented by Gary H. Fechter of McCarter & English, LLP, New York, USA. Respondent is Sasha Antonic (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <brfasia.com>, registered with GoDaddy.com, 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on October 21, 2014; the National Arbitration Forum received payment on October 21, 2014.
On October 23, 2014, GoDaddy.com, LLC confirmed by e-mail to the National Arbitration Forum that the <brfasia.com> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, 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 October 28, 2014, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 17, 2014 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@brfasia.com. Also on October 28, 2014, 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 National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 25, 2014, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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 National Arbitration 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 owns the BRF mark through trademark registration with numerous trademark agencies, including the Mexican Institute of Industrial Property (“MIIP”) (Reg. No. 1,416,925 registered Dec. 2, 2013), and the Swiss Federal Institute of Intellectual Property (“SFIIP”) (Reg. No. 643,713 registered May 21, 2013). Complainant uses the BRF mark in connection with the food industry. The <brfasia.com> domain name is confusingly similar to the BRF mark despite the addition of the generic top-level domain name and the geographic term “asia.”
Respondent lacks rights in the disputed domain name. Complainant has not authorized Respondent’s use of the BRF mark. Further, Respondent has never made a legitimate commercial use or a genuine noncommercial or fair use of the disputed domain name. Instead, Respondent uses the disputed domain name to pass itself off as Complainant. The disputed domain name resolves to a website that appears nearly identical to Complainant’s own website through <brf-global.com>, the only modification being the addition of Respondent’s own contact information at the bottom of the home page.
Respondent’s bad faith is demonstrated by Respondent’s attempt to pass itself off as Complainant. Respondent has replicated and copied substantial portions of Complainant’s website, while listing its own contact information at the bottom of the resolving home page. Given Respondent’s efforts to pass itself off as Complainant, Respondent must have known of Complainant and its rights in the BRF mark.
B. Respondent
Respondent failed to submit a formal Response in this proceeding. However, on November 25, 2014, Respondent sent an email to the Forum stating that Respondent did not authorize the registration of the domain name and suggesting that the transaction be canceled.
Complainant, BRF S.A., f/k/a BRF - Brasil Foods S.A., owns the BRF mark through trademark registration with numerous trademark agencies, including the Mexican Institute of Industrial Property (“MIIP”) (Reg. No. 1,416,925 registered Dec. 2, 2013), and the Swiss Federal Institute of Intellectual Property (“SFIIP”) (Reg. No. 643,713 registered May 21, 2013). Complainant uses the BRF mark in connection with the food industry.
The <brfasia.com> domain name was registered September 27, 2014.
Respondent did not authorize the registration of the domain name. Respondent requests that the registration be canceled.
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(e), 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 and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
Complainant has rights in the BRF mark under Policy ¶ 4(a)(i)) through trademark registration with numerous trademark authorities. See Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the complainant’s numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant’s rights in the mark).
The <brfasia.com> domain name is confusingly similar to the BRF mark. The addition of the generic top-level domain (“gTLD”) and the geographic term “asia,” fail to distinguish the <brfasia.com> domain name from the included mark.
Consent to Transfer
As Respondent agrees to transfer the disputed domain name to Complainant, the Panel will forego the traditional UDRP analysis and order an immediate transfer of the <brfasia.com> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb. Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Disney Enters., Inc. v. Morales, FA 475191 (Nat. Arb. Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
The Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <brfasia.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: December 9, 2014
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