DECISION

 

Bunge Limited, Bunge SA and Bunge Asia Pte. Ltd v. Redacted for Privacy / Privacy service provided by Withheld for Privacy ehf

Claim Number: FA2204001993197

 

PARTIES

Complainant is Bunge Limited, Bunge SA and Bunge Asia Pte. Ltd (“Complainants” or “Complainant”), represented by Renee Reuter, Missouri, USA.  Respondent is Redacted for Privacy / Privacy service provided by Withheld for Privacy ehf (“Respondent”), Iceland.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <bunge.us.com> (“Domain Name”), registered with NameCheap, 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.

 

Nicholas J.T. Smith as Panelist.

 

PROCEDURAL HISTORY

Complainant participated in the mandatory CentralNic Mediation, and the mediation process was terminated on April 13, 2022.

 

Complainant submitted a Complaint to the Forum electronically on April 20, 2022; the Forum received payment on April 20, 2022.

 

On April 22, 2022, NameCheap, Inc. confirmed by e-mail to the Forum that the <bunge.us.com> 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 the CentralNic Dispute Resolution Policy (the “CDRP Policy” or “Policy”).

 

On April 27, 2022, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of May 17, 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@bunge.us.com.  Also on April 27, 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 May 20, 2022 pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Nicholas J.T. Smith 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 to the CDRP 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 CDRP Policy, 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.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PRELIMINARY ISSUE: MULTIPLE COMPLAINANTS

In the instant proceedings, there are three Complainants.  Paragraph 3(a) of the Rules provides that “[a]ny 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. 

 

The Panel has reviewed the Complaint and is satisfied that that Bunge SA and Bunge Asia Pte. Ltd are wholly-owned subsidiaries of Bunge Limited.  This is sufficient to establish a sufficient nexus or link between the Complainants such that they should be treated as a single entity in this proceeding referred to in the singular, as “Complainant”.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant is a prominent agribusiness company. Complainant has rights in the BUNGE mark through its registration of the mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 4,524,954 registered May 6, 2014).  Respondent’s <bunge.us.com> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the BUNGE mark in its entirety and adds the “.us” country code top-level domain (“ccTLD”) and the “.com” generic top-level domain (“gTLD”).

 

Respondent has no legitimate interests in the <bunge.us.com> domain name.  Respondent is not commonly known by the Domain Name and Complainant has not authorized or licensed Respondent any rights in the BUNGE mark.  Additionally, Respondent does not use the Domain Name for any bona fide offering of goods or services or legitimate noncommercial or fair use.  Instead, an email address incorporating the Domain Name was used to impersonate Complainant (indeed a named employee of Complainant) and the Domain Name resolves to Complainant’s webpage.

 

Respondent registered and uses the <bunge.us.com> domain name in bad faith.  Respondent registered the Domain Name with actual knowledge of Complainant’s rights in the BUNGE mark as it impersonates Complainant for the purpose of engaging in phishing.

 

B. Respondent

Respondent failed to submit a Response in this proceeding.

 

FINDINGS

Complainant holds trademark rights for the BUNGE mark.  The Domain Name is identical to Complainant’s BUNGE mark.  Complainant has established that Respondent lacks rights or legitimate interests in the Domain Name and that Respondent registered and has used the Domain Name in bad faith.

 

DISCUSSION

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 or is being used in bad faith.

 

The CDRP also requires that Complainant have participated in a CentralNic Mediation, and that said mediation must have been terminated prior to the consideration of the Complaint.  The Panel is satisfied that this has occurred.

           

Given the similarity between the Uniform Domain Name Dispute Resolution Policy (“UDRP”) and the Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.

 

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

Complainant has rights in the BUNGE mark under Policy ¶ 4(a)(i) through its registration of the mark with the USPTO (e.g. Reg. No. 4,524,954 registered May 6, 2014).  Registration of a mark with the USPTO is sufficient to establish rights in that mark.  See DIRECTV, LLC v. The Pearline Group, FA 1818749 (Forum Dec. 30, 2018) (“Complainant’s ownership of a USPTO registration for DIRECTV demonstrate its rights in such mark for the purposes of Policy ¶ 4(a)(i).”).

 

The Panel finds that the <bunge.us.com> domain name is identical to the BUNGE mark as it merely adds the “us.com” TLD to Complainant’s wholly incorporated BUNGE mark.  The addition of a top-level domain (“TLD”) is insufficient to distinguish a domain from a mark under Policy ¶ 4(a)(i).  See Dansko, LLC v. zhang wu, FA 1757745 (Forum Dec. 12, 2017) (finding the <danskoshoes.us.com> domain name to be confusingly similar to the DANSKO mark under Policy ¶ 4(a)(i), despite the addition of the “.us” ccTLD and the “.com” gTLD);  see also Gardline Surveys Ltd. v. Domain Fin. Ltd., FA 153545 (Forum May 27, 2003) (“The addition of a top-level domain is irrelevant when establishing whether or not a mark is identical or confusingly similar, because top-level domains are a required element of every domain name.”).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).

 

Rights or Legitimate Interests

Complainant alleges that Respondent holds no rights or legitimate interests in the Domain NameIn order for Complainant to succeed under this element, it must first make a prima facie case that Respondent lacks rights and legitimate interests in the Domain Name under Policy ¶ 4(a)(ii), and then the burden shifts to Respondent to show it does have rights or legitimate interests.  See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum Aug. 18, 2006) and AOL LLC v. Gerberg, FA 780200 (Forum Sept. 25, 2006) (“Complainant must first make a prima facie showing that Respondent does not have rights or legitimate interest in the subject domain names, which burden is light.  If Complainant satisfies its burden, then the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.”).  The Panel holds that Complainant has made out a prima facie case.

 

Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name as Respondent is not commonly known by the Domain Name, nor has Complainant authorized Respondent to use the BUNGE mark.  Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.  WHOIS information can help support a finding that a respondent is not commonly known by the disputed domain name, especially where a privacy service has been engaged.  See State Farm Mutual Automobile Insurance Company v. Dale Anderson, FA1504001613011 (Forum May 21, 2015) (concluding that because the WHOIS record lists “Dale Anderson” as the registrant of the disputed domain name, the respondent was not commonly known by the <statefarmforum.com> domain name pursuant to Policy ¶ 4(c)(ii)); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name).  The WHOIS lists “Redacted for Privacy / Privacy service provided by Withheld for Privacy ehf” as registrant of record.  Coupled with Complainant’s unrebutted assertions as to absence of any affiliation or authorization between the parties, the Panel finds that Respondent is not commonly known by the Domain Name in accordance with Policy ¶ 4(c)(ii). 

 

The Domain Name resolves to Complainant’s official website at www.bunge.com which by itself does not show a bona fide offering of goods and services.  Complainant alleges, and provides evidence supporting its allegations, that Respondent uses an email address associated with Domain Name to attempt to pass itself off as Complainant (indeed a named employee of Complainant) in furtherance of a phishing scam.  Use of a disputed domain name to pass off as a complainant through emails is not a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii).  See Emerson Electric Co. v. Adilcon Rocha, FA 1735949 (Forum July 11, 2017) (finding that respondent’s attempt to pass off as complainant through emails does not constitute a bona fide offering of goods or services and, as such, respondent lacked rights or legitimate interests in the disputed domain name); see also Caterpillar Inc. v. ruth weinstein, FA 1770352 (Forum Mar. 7, 2018) (“Use of a disputed domain name in an attempt to pass itself off as a complainant and to conduct a phishing scheme is indicative of a failure to use said domain name in connection with a bona fide offer of goods and services per Policy ¶ 4(c)(i) or a legitimate noncommercial or otherwise fair use per Policy ¶ 4(c)(iii).”).

 

The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).

 

Registration or Use in Bad Faith

The Panel finds that, at the time Respondent registered the Domain Name, January 18, 2022, Respondent had actual knowledge of Complainant’s BUNGE mark.  The Respondent has used the Domain Name to pass itself off as Complainant for financial gain.  In the absence of rights or legitimate interests of its own this demonstrates registration in bad faith under Policy ¶ 4(a)(iii).

 

The Panel finds that Respondent registered and uses the Domain Name in bad faith as Respondent uses an email address associated with the Domain Name to attempt to pass itself off as an employee of the Complainant to disrupt the Complainant’s business or for financial gain.  Using a disputed domain name to pass off as an employee of a complainant via email can demonstrate bad faith under Policy ¶¶ 4(b) (iii) and (iv).  See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶ 4(b)(iii), and/or Policy ¶ 4(b)(iv)”); see also 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).  Accordingly, the Panel finds that Respondent registered and uses the Domain Name in bad faith pursuant to Policy ¶ 4(b)(iv). 

 

The Panel while noting that the Policy only requires that a complainant show that a respondent registered or used a domain name at issue in bad faith, finds that the Respondent has registered and used the Domain Name in bad faith under Policy ¶ 4(a)(iii).

 

DECISION

Having established all three elements required under the CDRP Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <bunge.us.com> domain name be TRANSFERRED from Respondent to Complainant.

 

 

Nicholas J.T. Smith, Panelist

Dated:  June 6, 2022

 

 

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