Bunge Limited v. Evgenii Fefelov
Claim Number: FA2107001956666
Complainant is Bunge Limited ("Complainant"), represented by Renee Reuter, Missouri, USA. Respondent is Evgenii Fefelov ("Respondent"), Russia.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <sale-bunge.shop> and <sale-bunge.info>, registered with Registrar of Domain Names REG.RU 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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 26, 2021; the Forum received payment on July 26, 2021.
On July 27, 2021, Registrar of Domain Names REG.RU LLC confirmed by email to the Forum that the <sale-bunge.shop> and <sale-bunge.info> domain names are registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the names. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU 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 July 28, 2021, the Forum served the Complaint and all Annexes, including a Russian language Written Notice of the Complaint, setting a deadline of August 17, 2021 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@sale-bunge.shop, postmaster@sale-bunge.info. Also on July 28, 2021, the Russian language Written Notice of the Complaint, notifying Respondent of the email 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 August 19, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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.
The Panel notes that the Registration Agreement is written in Russian. Rule 11(a) provides that the language of this administrative proceeding shall be the language of the Registration Agreement, subject to the authority of the Panel to determine otherwise.
Complainant requests that the proceeding be conducted in English, asserting that Respondent is capable of proceeding in English and noting inter alia that the disputed domain names both combine the mark of a company headquartered in the United States with the English-language word "sale" (and, in at least one instance, an English-language top-level domain). Complainant also states that requiring it to provide a Russian translation of the Complaint would cause it to incur a significant expense and would result in a delay in this proceeding.
The Panel notes that the Written Notice of the Complaint was served upon Respondent in both English and Russian. The Russian-language notice appears to be based upon an earlier version of the English-language notice (for example, it includes a broken link to an outdated version of the Forum's Supplemental Rules), but both versions include working links to ICANN's website for the Policy and the Rules — and the Panel notes that those documents appear there in multiple languages, including Russian. Respondent has made no objection to Complainant's request that the proceeding be conducted in English nor indicated any intent to participate in the proceeding.
The Panel does not believe it would be unduly burdensome to require Complainant to provide a Russian translation of the Complaint (or, indeed, for the entire proceeding to be conducted in Russian). Complainant is a large multinational corporation — operating in "more than 40 countries" including Russia, according to its own website — and presumably has access to substantial legal and language resources. See Goodreads LLC v. Mayk Belov / N/A, FA 1624520 (Forum July 17, 2015) (making a similar observation with respect to a subsidiary of Amazon.com, Inc.).
On the other hand, the Panel finds it likely that Respondent is sufficiently conversant in the English language, has received adequate notice of this proceeding, and has chosen not to participate. The Panel sees no reason to require the expense and delay associated with arranging for a Russian translation that is likely unnecessary to afford proper notice to Respondent, and that in any event Respondent is likely to ignore. See, e.g., Skechers U.S.A., Inc. & Skechers U.S.A., Inc. II v. Barbara Metzger / Lucas Farber, FA 1936247 (Forum Apr. 15, 2021). It appears to the Panel that no prejudice will result from conducting this proceeding in English, and that doing so will enable the proceeding to be conducted expeditiously. See, e.g., Goodreads LLC v. Mayk Belov / N/A, supra. The Panel decides that English shall be the language of this proceeding.
A. Complainant
Complainant uses BUNGE in connection with various types of edible grains and oils, along with related import/export agency goods and services. Complainant is headquartered in the United States and uses the BUNGE mark worldwide. Complainant owns several United States trademark registrations for the BUNGE mark, including a registration for the mark in standard character form that issued in 1995 based on use in commerce since 1988, and states that it also owns trademark registrations in several other countries.
Respondent registered the disputed domain names <sale-bunge.shop> and <sale-bunge.info> on June 23, 2021. Complainant states that the domain names were registered via a privacy registration service to obscure the identity of the beneficial registrant, noting that the public Whois registration records for the domain names disclose only the registrant's location (Moscokskaya Oblast, Russia) and, in one instance, "Private Person" as the registrant's organization. Complainant states further that Respondent is not making any active use of the domain names, each of which points to a holding page stating that the domain name was registered and parked with REG.RU. Complainant states that Respondent is not commonly known by the disputed domain names and has not been given permission to use Complainant's mark.
Complainant contends on the above grounds that the disputed domain names <sale-bunge.shop> and <sale-bunge.info> are confusingly similar to its BUNGE mark; that Respondent lacks rights or legitimate interests in the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that each of the disputed domain names is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain names; and that the disputed domain names were registered and are being used in bad faith.
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 Overview of WIPO Panel Views on Selected UDRP Questions, § 4.3 (3d ed. 2017), available at http://www.wipo.int/amc/en/domains/search/overview3.0/; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (dismissing complaint where complainant failed to "produce clear evidence to support its subjective allegations").
Each of the disputed domain names <sale-bunge.shop> and <sale-bunge.info> incorporates Complainant's registered BUNGE trademark, preceded by the generic term "sale" and a hyphen, and appends the ".shop" or ".info" top-level domain. These additions do not substantially diminish the similarity between the domain names and Complainant's mark. See, e.g., Bunge Ltd. v. Bungeteam, FA 1950450 (Forum July 12, 2021) (finding <bungeteam.com> confusingly similar to BUNGE); Bunge Ltd. v. Zhanghui, FA 1944014 (Forum June 23, 2021) (finding <grupobunge.com> confusingly similar to BUNGE); Dansko, LLC v. Gery Lee, D2011-1300 (WIPO Sept. 12, 2011) (finding <sale-dansko.com> confusingly similar to DANSKO); Brooks Sports, Inc. v. Kyu / John Rex / Xcfhsfd Sdf / 俊豪 陈 / Nbfgsd, FA 1898717 (Forum July 2, 2020) (finding <brooksbigsale.shop> confusingly similar to BROOKS); Hoffmann-La Roche Inc. v. Lindy Shaw, D2008-0985 (WIPO Aug. 14, 2008) (finding <xenical-for-sale.info> confusingly similar to XENICAL). The Panel considers the disputed domain names to be confusingly similar to a mark in which Complainant has rights.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain names, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, FA 741828 (Forum Aug. 18, 2006).
The disputed domain names incorporates Complainant's registered mark without authorization. Respondent does not appear to have made any active use of the domain names, nor to have engaged in preparations for such use. See Morgan Stanley v. Kenneth Chung c/o Bethesda Properties LLC, FA 1052609 (Forum Sept. 24, 2007) (inferring lack of rights or legitimate interests from respondent’s failure to respond to complaint and failure to make active use of domain name).
Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain names, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain names.
Finally, Complainant must show that the disputed domain names were registered and are being used in bad faith. Under paragraph 4(b)(i) of the Policy, bad faith may be shown by evidence that a domain name was acquired "primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of [Respondent's] documented out-of-pocket costs directly related to the domain name." Under paragraph 4(b)(iii), bad faith may be shown by evidence that Respondent registered a domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location." For a domain name to have been registered in bad faith, Respondent must have been aware of Complainant or its mark when registering the domain name, and the registration must in some way have been targeted at Complainant or its mark. See Kanal, Inc. v. Domain Admin, FA 1478238 (Forum Feb. 12, 2013).
Respondent registered two domain names incorporating Complainant's mark, and does not appear to have put them to any active use. Under the circumstances presented here, and in the absence of any explanation from Respondent, the Panel considers it reasonable to infer that Respondent was aware of Complainant and its mark; that Respondent registered the domain names intending to use them in a manner calculated to create and exploit confusion with Complainant's mark, perhaps by selling them to Complainant or a competitor thereof, or by using them to impersonate Complainant or to attract Internet users seeking Complainant; and that Respondent is maintaining the domain names for that purpose. See, e.g., Genpak LLC v. Ding Yufan, FA 1939920 (Forum May 10, 2021) (inferring bad faith in similar circumstances). The Panel finds that the disputed domain names were registered and are being used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <sale-bunge.shop> and <sale-bunge.info> domain names be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: August 20, 2021
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