Bunge Limited and Bunge Sanwei Oil & Fat Co Ltd. v. sha chen
Claim Number: FA2203001986565
Complainant is Bunge Limited and Bunge Sanwei Oil & Fat Co Ltd. (“Complainant”), represented by Renee Reuter, Missouri, USA. Respondent is sha chen (“Respondent”), China.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bungechina.com>, registered with EUTurbo.com LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 2, 2022; the Forum received payment on March 2, 2022.
On March 4, 2022, EUTurbo.com LLC confirmed by e-mail to the Forum that the <bungechina.com> domain name is registered with EUTurbo.com LLC and that Respondent is the current registrant of the name. EUTurbo.com LLC has verified that Respondent is bound by the EUTurbo.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 March 7, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of March 28, 2022 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@bungechina.com. Also on March 7, 2022, 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 3, 2022, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Sandra J. Franklin 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.
Preliminary Issue: Multiple Complainants
The relevant rules governing multiple complainants are UDRP Rule 3(a) and the Forum’s Supplemental Rule 1(e). UDRP Rule 3(a) states, “Any person or entity may initiate an administrative proceeding by submitting a complaint.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as a “single person or entity claiming to have rights in the domain name, or multiple persons or entities who have a sufficient nexus who can each claim to have rights to all domain names listed in the Complaint.”
Previous panels have interpreted the Forum’s Supplemental Rule 1(e) to allow multiple parties to proceed as one party where they can show a sufficient link to each other. For example, in Vancouver Org. Comm. for the 2010 Olympic and Paralymic Games & Int’l Olympic Comm. v. Malik, FA 666119 (Forum May 12, 2006), the panel stated:
It has been accepted that it is permissible for two complainants to submit a single complaint if they can demonstrate a link between the two entities such as a relationship involving a license, a partnership or an affiliation that would establish the reason for the parties bringing the complaint as one entity.
In Tasty Baking, Co. & Tastykake Invs., Inc. v. Quality Hosting, FA 208854 (Forum Dec. 28, 2003), the panel treated the two complainants as a single entity where both parties held rights in trademarks contained within the disputed domain names. Likewise, in Am. Family Health Srvs. Group, LLC v. Logan, FA 220049 (Forum Feb. 6, 2004), the panel found a sufficient link between the complainants where there was a license between the parties regarding use of the TOUGHLOVE mark. But see AmeriSource Corp. v. Park, FA 99134 (Forum Nov. 5, 2001) (“This Panel finds it difficult to hold that a domain name that may belong to AmerisourceBergen Corporation (i.e., the subject Domain Names) should belong to AmeriSource Corporation because they are affiliated companies.”).
There are two Complainants in this matter: Bunge Limited and Bunge Sanwei Oil & Fat Co. Ltd. Complainant argues that Complainants have a sufficient nexus as Bunge Limited is the parent company of Bunge Sanwei Oil & Fat Co. Ltd. The Panel agrees and determines that Complainants will be collectively referred to as “Complainant.”
A. Complainant
1. Respondent’s <bungechina.com> domain name is confusingly similar to Complainant’s BUNGE mark.
2. Respondent does not have any rights or legitimate interests in the <bungechina.com> domain name.
3. Respondent registered and uses the <bungechina.com> domain name in bad faith.
B. Respondent did not file a Response.
Complainant is an agricultural company that holds a registration for the BUNGE mark with the United States Patent and Trademark Office (“USPTO”) (Reg. 4,524,954, registered May 6, 2014).
Respondent registered the <bungechina.com> domain name was on November 9, 2021, and uses it to host adult content.
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”).
The Panel finds that Complainant has rights in the BUNGE mark through its registration with the USPTO. See Synovus Financial Corp. v. Elizabeth Fagin / Wells & Wadw, FA 1601001655021 (Forum Feb. 5, 2016) (finding that Complainant had demonstrated its rights in the SYNOVUS mark through its registration with the USPTO).
Respondent’s <bungechina.com> domain name uses the BUNGE mark, and adds a geographic term along with the “.com” gTLD. These changes do not distinguish a disputed domain name from the mark it incorporates. See Ticketmaster Corp. v. Kumar, FA 744436 (Forum Aug. 17, 2006) (finding that the <indiaticketmaster.com> domain name was confusingly similar to the complainant’s TICKETMASTER mark). Therefore, the Panel finds that Respondent’s <bungechina.com> domain name is confusingly similar to Complainant’s BUNGE mark.
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(i).
Once Complainant makes a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), 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”).
Complainant argues that Respondent is not commonly known by the <bungechina.com> domain name, and Complainant has not authorized or licensed Respondent to use its BUNGE mark. The WHOIS of record identifies Respondent as “sha chen.” Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name, and thus has no rights under Policy ¶ 4(c)(ii). See PragmaticPlay Limited v. Robert Chris, FA2102001932464 (Forum Mar. 23, 2021) (“The WHOIS information of record lists the registrant as “Robert Chris,” and no other information of record suggests Respondent is commonly known by the domain name. Therefore, the Panel finds that Respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii).”)
Complainant argues that Respondent does not use the <bungechina.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Under Policy ¶¶ 4(c)(i) and (iii), using a disputed domain name to host unrelated adult content is not a bona fide offering of goods or services, nor a legitimate noncommercial or fair use. See Twitter, Inc. v. Kiribati Media / Kiribati 200 Media Limited-, FA 1603444 (Forum Mar. 19, 2015) (holding that, generally, a disputed domain which hosts adult-oriented material is not a bona fide offering of goods or services or a legitimate noncommercial or fair use). Complainant provides a screenshot of the disputed domain name’s resolving website, which features adult images. Therefore, the Panel finds that Respondent does not use the disputed domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use, and thus has no rights under Policy ¶¶ 4(c)(i) or (iii).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant argues that Respondent registered and uses the <bungechina.com> domain name in bad faith to host adult content. The Panel agrees and finds that Respondent registered and uses the disputed domain name in bad faith under Policy ¶ 4(b)(iv). See Google Inc. v. Bassano, FA 232958 (Forum Mar. 8, 2004) (holding that the respondent’s use of the <googlesex.info> domain name to intentionally attract Internet users to a website featuring adult-oriented content constituted bad faith registration and use under Policy ¶ 4(b)(iv)).
The Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bungechina.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 5, 2022
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