ConAgra Foods RDM, Inc. v. mujahid janmohamed / conagragroup
Claim Number: FA2103001935351
Complainant is ConAgra Foods RDM, Inc. (“Complainant”), represented by Jasmine Davis of Conagra Brands, Inc., Illinois, USA. Respondent is mujahid janmohamed / conagragroup (“Respondent”), Canada.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <career-conagragroup.live>, registered with NameCheap, Inc.
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.
Hon. Karl v. Fink (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 3, 2021; the Forum received payment on March 3, 2021.
On March 4, 2021, NameCheap, Inc. confirmed by e-mail to the Forum that the <career-conagragroup.live> 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 March 10, 2021, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 30, 2021 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@career-conagragroup.live. Also on March 10, 2021, 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 Forum transmitted to the parties a Notification of Respondent Default.
On April 5, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Hon. Karl V. Fink (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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 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, ConAgra Foods RDM, Inc., operates the fourth largest food company in the United States. Complainant has rights in the CONAGRA BRANDS mark through its registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. 5,413,453, registered February 27, 2018). Respondent’s <career-conagragroup.live> domain name is confusingly similar to Complainant’s CONAGRA BRANDS mark, mere adding a hyphen, the generic terms “career” and “group”, omitting the term “brands” and adding the “.live” generic top-level domain (“gTLD).
Respondent lacks rights and legitimate interests in the <career-conagragroup.live> domain name as it is not commonly known by the disputed domain name and is neither an authorized user or licensee of the CONAGRA BRANDS mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services, nor for any legitimate noncommercial or fair use. Instead, Respondent uses an email account associated with the disputed domain name to conduct a phishing scheme.
Respondent registered and uses the <career-conagragroup.live> domain name in bad faith. Respondent uses an email account associated with the disputed domain name to operate a phishing scheme to defraud Internet users. Additionally, Respondent registered the disputed domain name with actual knowledge of Complainant’s rights in the CONAGRA BRANDS mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
For the reasons set forth below, based upon the uncontested allegations and evidence, the Panel finds that Complainant is entitled to the requested relief of transfer of the <career-conagragroup.live> 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”).
Complainant asserts rights in the CONAGRA BRANDS mark through its registration with the USPTO. Registration of a mark with a trademark agency, such as the USPTO, is generally sufficient to demonstrate rights in a mark under Policy ¶ 4(a)(i). See Home Depot Product Authority, LLC v. Samy Yosef / Express Transporting, FA 1738124 (Forum July 28, 2017) (finding that registration with the USPTO was sufficient to establish the complainant’s rights in the HOME DEPOT mark). Complainant provides evidence of its registration with the USPTO (e.g., Reg. 5,413,453, registered February 27, 2018). The Panel finds that Complainant has rights in the CONAGRA BRANDS mark under Policy ¶ 4(a)(i).
Complainant argues that Respondent’s <career-conagragroup.live> domain name is confusingly similar to Complainant’s CONAGRA BRANDS mark, only differing by the addition of a hyphen, the generic terms “career” and “group”, the omission of the word “brands”, and the addition of the “.live” gTLD. Addition of a hyphen, generic terms, and a gTLD, along with omitting a word from a mark does not necessarily negate confusing similarity between a domain name and a mark under Policy ¶ 4(a)(i). See Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. Svensson Viljae, FA 1784650 (Forum June 1, 2018) (finding confusing similarity where “[t]he disputed domain name <skechers-outlet.com> adds a hyphen and the generic term ‘outlet’ to Complainant's registered SKECHERS mark, and appends the ‘.com’ top-level domain.”); see also VNY Model Management, Inc. v. Lisa Katz / Domain Protection LLC, FA 1625115 (Forum Aug. 17, 2015) (finding that Respondent’s <vnymodels.com> domain name is confusingly similar to the VNY MODEL MANAGEMENT mark under Policy ¶ 4(a)(i).). The Panel finds that the disputed domain name is confusingly similar to Complainant’s mark under Policy ¶ 4(a)(i).
Complainant has proved this element.
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 a prima facie case.
Complainant argues that Respondent lacks rights and legitimate interests in the <career-conagragroup.live> domain name as it is not commonly known by the disputed domain name and is neither an authorized user or licensee of the CONAGRA BRANDS mark. When no response is submitted, relevant WHOIS information may demonstrate that a Respondent is not commonly known by a disputed domain name pursuant to Policy ¶ 4(c)(ii). See Tenza Trading Ltd. v. WhoisProtectService.net / PROTECTSERVICE, LTD., FA1506001624077 (Forum July 31, 2015) (“The WHOIS information lists ‘WhoisProtectService.net’ as the registrant of record for the disputed domain names. Accordingly, in the absence of a Response, there is no evidence to indicate that Respondent might be known by any of the domain names.”). The WHOIS information on record identifies Respondent as “Mujahid Jammohamed”. The Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).
Complainant also argues that Respondent does not use the <career-conagragroup.live> domain name for a bona fide offering of goods or services, or for a legitimate noncommercial or fair use, but rather to attempt to defraud Internet users by operating a phishing scheme. Use of a disputed domain name in furtherance of a phishing scheme does not qualify as a bona fide offering of goods or services or a legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (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).”). Complainant provides evidence that Respondent has used an email account associated with the disputed domain name to attempt to defraud Internet users. The Panel finds that Respondent lacks rights and legitimate interests in respect of the disputed domain name under Policy ¶¶ 4(c)(i) and (iii).
Complainant has proved this element.
Complainant claims that Respondent registered and uses the <career-conagragroup.live> domain name in bad faith as Respondent attempts to operate a phishing scheme using an email account associated with the disputed domain. Use of a disputed domain name to send fraudulent emails constitutes bad faith disruption for commercial gain under Policy ¶¶ 4(b)(iii) and (iv). 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 supported a finding of bad faith registration and use under Policy ¶ 4(b)(iii)); 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)., Complainant provides a copy of an email sent to an Internet user whereby Respondent attempts to pass itself off as Complainant offering the recipient a job. This is evidence that Respondent registered and uses the disputed domain name in bad faith under Policy ¶¶ 4(b)(iii) and (iv).
Complainant claims that Respondent registered the <career-conagragroup.live> domain name with actual knowledge of Complainant’s rights in the CONAGRA BRANDS mark. Under Policy ¶ 4(a)(iii), actual knowledge of a Complainant’s trademark rights is sufficient to establish bad faith and may be demonstrated by the fame of a mark and the use Respondent makes of the domain name. See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum Jan. 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”). Complainant is one of the largest food companies in the United States, and Respondent uses the disputed domain name to operate a phishing scheme using an email account associated with the disputed domain name. The Panel finds that Respondent had actual knowledge of Complainant’s rights in the mark and registered and uses the mark in bad faith.
Complainant has proved this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is ORDERED that the <career-conagragroup.live> domain name be TRANSFERRED from Respondent to Complainant.
Hon. Karl V. Fink (Ret.) Panelist
April 8, 2021
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