Cargill, Incorporated v. Eduardo Xambre
Claim Number: FA1610001699721
Complainant is Cargill, Incorporated (“Complainant”), represented by Patrick J. Gallagher of Norton Rose Fulbright US LLP, Minnesota, USA. Respondent is Eduardo Xambre (“Respondent”), Australia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cargill-global.com>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Richard Hill as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 25, 2016; the Forum received payment on October 25, 2016.
On October 27, 2016, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <cargill-global.com> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the name. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com 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 27, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 16, 2016 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@cargill-global.com. Also on October 27, 2016, 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 November 21, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Richard Hill 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 states that it offers food, agriculture, financial and industrial products and services in the United States and internationally. Complainant uses the CARGILL mark to advertise and promote its business around the world and has rights in the CARGILL mark based upon registration in the United States in 1969.
According to Complainant, the disputed domain name is identical or confusingly similar to its mark, as it incorporates the CARGILL mark in its entirety, merely differing through the addition of a hyphen; the geographic, generic term “global;” and the generic top-level domain (“gTLD”) “.com.” Complainant cites UDRP precedents to support its position.
Complainant alleges that Respondent has no rights or legitimate interests in the disputed domain name. Respondent is not commonly known by the disputed domain, nor has Respondent received or requested any authorization, permission, or license from Complainant to use the CARGILL mark in any way. The disputed domain name does not resolve to an active website, and the domain name is being used as an email server to send fraudulent emails referencing Complainant’s goods. Such use does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. Complainant cites UDRP precedents to support its position.
Further, says Complainant, Respondent registered and is using the disputed domain name in bad faith. Due to the famous nature of Complainant’s mark, Respondent had actual or constructive notice of the mark when it registered the disputed domain name. Respondent’s passive holding of the domain name incorporating the famous CARGILL mark is also evidence of bad faith under Policy ¶ 4(a)(iii). Additionally, Respondent is using the disputed domain name in connection with improper and apparent illegal and criminal activities. Such activity must be considered bad faith registration and use of the disputed domain name. Complainant cites UDRP precedents to support its position.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant owns rights in the mark CARGILL dating back to 1969.
The disputed domain name was registered in 2016.
Complainant has not licensed or otherwise authorized Respondent to use its mark.
Respondent has used the disputed domain name to send fraudulent emails purportedly coming from Complainant.
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 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 (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.”).
The disputed domain name is identical or confusingly similar to Complainant’s CARGILL mark, as the domain name contains the mark in its entirety, and differs only by the addition of a hyphen; the geographic, generic term “global;” and the gTLD “.com.” The addition of punctuation to a mark has been deemed irrelevant to an analysis of confusing similarity under Policy ¶ 4(a)(i). See Chernow Commc’ns, Inc. v. Kimball, D2000-0119 (WIPO May 18, 2000) (holding “that the use or absence of punctuation marks, such as hyphens, does not alter the fact that a name is identical to a mark"). The addition of “global” and a gTLD also does not adequately distinguish a domain name from a complainant’s mark. See Reed Elsevier Inc. & Reed Elsevier Properties Inc. v.
Pushkin Gupta, FA0704000967682 (Forum May 29, 2007) (“The addition of the word “global” does nothing to distinguish the disputed domain name from Complainant’s famous mark.”); see also Trip Network Inc. v. Alviera, FA 914943 (Forum Mar. 27, 2007) (concluding that the affixation of a gTLD to a domain name is irrelevant to a Policy ¶ 4(a)(i) analysis). Therefore, the Panel finds that the disputed domain name is confusingly similar to Complainant’s CARGILL mark under Policy ¶ 4(a)(i).
Respondent has no rights or legitimate interests in the disputed domain name as Respondent been not been authorized by Complainant to use the CARGILL mark, nor is Respondent commonly known by the disputed domain name: the WHOIS information of record identifies Respondent as “Eduardo Xambre.” WHOIS information can support a finding that the respondent is not commonly known by the disputed domain name. 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)). Additionally, panels have found evidence of lack of rights when there is no evidence in the record to indicate that a respondent had been authorized to register a domain name using complainant’s mark. See Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding that the respondent was not commonly known by the disputed domain name where the complainant had never authorized the respondent to incorporate its NAVISTAR mark in any domain name registration). The Panel therefore finds under Policy ¶ 4(c)(ii) that Respondent has not been commonly known by the disputed domain name.
Respondent’s lack of rights or legitimate interests in the disputed domain name is further evidenced by its failure to use the domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent uses the domain name to provide an email address to masquerade as Complainant. Specifically, emails have been sent from the email account <sales@cargill-global.com> purportedly from an employee of Complainant’s Brazil location. Panels have found that using a disputed domain name to send emails purportedly on behalf of a complainant does not amount to a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Chevron Intellectual Property LLC v. Thomas Webber / Chev Ronoil Recreational Sport Limited, FA 1661076 (Forum Mar. 15, 2016) (finding that the respondent had failed to provide a bona fide offering of goods or services or any legitimate noncommercial or fair use, stating, “Respondent is using an email address to pass themselves off as an affiliate of Complainant. Complainant presents evidence showing that the email address that Respondent has created is used to solicit information and money on false pretenses. The disputed domain name is being used to cause the recipients of these emails to mistakenly believe Respondent has a connection with Complainant and is one of the Complainant’s affiliates.”); see also See Microsoft Corporation v. Terrence Green, FA 1661030 (Forum, Apr. 4, 2016) (finding Respondent’s use of <microsoftcorps.com> to impersonate an executive of Complainant was not within the uses allowable under Policy ¶ 4(c)(i) and 4(c)(iii)). In light of Respondent’s use of the disputed domain as an email suffix in furtherance of a fraudulent scheme to pass itself off as an agent of Complainant, the Panel finds that Respondent’s use <cargill-global.com> is not a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) and (iii).
Respondent (who did not reply to Complainant’s contentions) has not presented any plausible explanation for its use of Complainant’s mark. In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from Respondent’s failure to reply as it considers appropriate. Accordingly, the Panel finds that Respondent did not have a legitimate use in mind when registering the disputed domain name.
As already noted, Respondent is using the disputed domain name to masquerade as Complainant through fraudulent emails associated with the disputed domain name. Emails sent from the <sales@cargill-global.com> address have contracted for the sale of sugar, and include a signature block including the name “Eduardo Xambre” and the entity name CARGILL AGRICOLA SA. Panels have found such fraudulent behavior to be evidence of bad faith under Policy ¶ 4(a)(iii). See SHUAA Capital psc v. Oba Junkie / shuaa capital psc, FA14009001581255 (Forum Oct. 29, 2014) (“The Panel finds that Respondent’s use of the domain name’s e-mail suffix for fraudulent purposes illustrates Policy ¶ 4(a)(iii) bad faith.”); see also Microsoft Corporation v. Terrence Green, FA 1661030 (Nat. Arb. 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)); Chevron Intellectual Property, LLC v. Jack Brooks, FA 1635967 (Nat. Arb. Forum Oct. 6, 2015) (finding that Respondent’s use of <chevron-corps.com> to impersonate an executive of Complainant in emails is in opposition to Complainant and is therefore in bad faith under Policy ¶ 4(b)(iii)); Brownell Travel, Inc. v. Troy Haas, FA 1589137 (Nat. Arb. Forum, Dec. 20, 2014) (finding the use of the domain name to send emails impersonating the CEO to the Complainant’s Account Manager to attempt to commit fraud on the Complainant constituted bad faith registration and use under Policy ¶ 4(b)(iii)); The Hackett Group, Inc. v. Brian Herns/The Hackett Group, FA 1597465 (Nat. Arb. Forum, Feb. 6, 2015) (finding that the use of emails associated with the domain name to send fraudulent emails contains the requisite competitive nature under Policy ¶ 4(b)(iii) and this is evidence of bad faith disruption); National Oilwell Varco, L.P. v. Craig Wood/NOV, FA 1575951 (Nat. Arb. Forum, September 22, 2014) (“We are persuaded by the evidence that Respondent’s use of the <nov-inc.com> domain name to commit a commercial fraud while purporting to act in the name of the Complainant, all as alleged in the Complaint, demonstrates bad faith in the registration and use of the domain name”). The Panel therefore finds that Respondent’s use of the disputed domain name is in bad faith under 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 <cargill-global.com> domain name be TRANSFERRED from Respondent to Complainant.
Richard Hill, Panelist
Dated: November 21, 2016
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