Nutrien Ltd. v. pache pache / wizzie wizzie / Technical Support / samantha anderson / Coke / byrd building service / brd
Claim Number: FA1810001812162
Complainant is Nutrien Ltd. (“Complainant”), represented by Abe J Shanehsaz of Faegre Baker Daniels LLP, United States of America. Respondent is pache pache / wizzie wizzie / Technical Support / samantha anderson / Coke / byrd building service / brd (“Respondent”), United States.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <nutriienn.com>, <nuitrien.com>, <nutrienn.com>, <nutrlen.com>, and <pcsnutrien.com>, registered with Namecheap, Inc.; Google Llc; Enom, Llc; Tucows Domains Inc.
The undersigned certifies that he has acted independently and impartially, and, to the best of his knowledge, has no conflict of interests in serving as Panelist in this proceeding.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 16, 2018; the Forum received payment on October 17, 2018.
On October 19, 2018; October 24, 2018, Namecheap, Inc.; Google Llc; Enom, Llc; Tucows Domains Inc. confirmed by e-mail to the Forum that the <nutriienn.com>, <nuitrien.com>, <nutrienn.com>, <nutrlen.com>, and <pcsnutrien.com> domain names are registered with Namecheap, Inc.; Google Llc; Enom, Llc; Tucows Domains Inc. and that Respondent is the current registrant of the names. Namecheap, Inc.; Google Llc; Enom, Llc; Tucows Domains Inc. has verified that Respondent is bound by the Namecheap, Inc.; Google Llc; Enom, Llc; Tucows Domains 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 October 31, 2018, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of November 20, 2018 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@nutriienn.com, postmaster@nuitrien.com, postmaster@nutrienn.com, postmaster@nutrlen.com, postmaster@pcsnutrien.com. Also, on October 31, 2018, 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.
On November 9, 2018, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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 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.
Complainant requests that the domain names be transferred from Respondent to Complainant.
Preliminary Issue: Multiple Respondents
Paragraph 3(c) of the UDRP Rules provides that a “complaint may relate to more than one domain name, provided that the domain names are registered by the same domain name holder.” The Complaint filed in this proceeding asserts claims involving five separate domain names, each putatively having a different identified registrant. Complainant contends, however, that there is, in fact, but one registrant, operating under a series of aliases. In support of this contention, Complainant alleges that, in each case, the domain names were registered using a privacy shield service, that three of the domain names were registered in April of 2018 while the other two were registered shortly thereafter, in July and August, and that all of the domain names employ the same strategy of typo-squatting Complainant’s NUTRIEN trademark to facilitate the operation of a fraudulent e-mail “phishing scheme.” None of the domain name registrants denies these assertions. Accordingly, Complainant has established a sufficient record to permit us to conclude that, as alleged, the putatively separate domain name registrants are, in fact, a single enterprise which we will refer to collectively throughout this proceeding as “Respondent.”
A. Complainant
Complainant, the resulting entity from a merger between Potash Corporation of Saskatchewan, Inc., and Agrium, Inc., is a major international supplier of potash, fertilizing minerals and other related agricultural products and services.
Dating from January 2, 2018, Complainant has acquired and maintained common law rights in, and has since filed trademark registrations for, the NUTRIEN trademark.
Also dating from January 2, 2018, Complainant owned and operated a website accessed by the domain name <nutrien.com> to advertise and provide information regarding its products and services.
Respondent registered the following domain names on the date indicated for each: <nutriienn.com> on April 16, 2018, <nuitrien.com> on August 6, 2018, <nutrienn.com> on April 11, 2018, <nutrlen.com> on April 17, 2018, and <pcsnutrien.com> on July 24, 2018.
Each of the domain names is confusingly similar to Complainant’s NUTRIEN trademark.
Respondent is not licensed or otherwise authorized to use Complainant’s NUTRIEN mark.
Respondent has not been commonly known by any of the domain names.
Respondent is not using the domain names in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. Instead, Respondent uses email addresses associated with the domain names to pass itself off as Complainant to facilitate a fraudulent phishing scheme that targets Complainant’s customers by sending emails to them to secure payments of funds from them by impersonating employees of Complainant, including its invoicing coordinator.
Respondent has neither any rights to nor any legitimate interests in the domain names.
Respondent has established a pattern of bad faith in the registration of multiple offending domain names.
Respondent registered and uses the domain names in bad faith.
B. Respondent
Respondent has failed to respond to the Complaint in accordance with the requirements of the UDRP Rules.
(1) the domain names registered by Respondent are confusingly similar to a trademark in which Complainant has rights; and
(2) Respondent has no rights to or legitimate interests in respect of the domain names; and
(3) the same domain names were registered and are being used by Respondent 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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights to or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used by Respondent in bad faith.
In view of Respondent's failure to submit a response, the Panel will, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules, decide this proceeding on the basis of Complainant's undisputed representations, and, pursuant to paragraph 14(b) of the Rules, draw such inferences as it deems appropriate. The Panel is entitled to accept as true all reasonable allegations and inferences set out in the Complaint unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (finding that a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a UDRP complaint to be deemed true). See also Talk City, Inc. v. Robertson, D2000-0009 (WIPO February 29, 2000): “In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”
Complainant claims rights in the NUTRIEN mark under the common law. Although complainants more frequently demonstrate their rights in a mark by reference to registration of the mark with a national or international trademark authority, common law rights in a mark are also recognized under the Policy. See, for example, loanDepot.com, LLC v. sm goo, FA 1786848 (Forum June 12, 2018) (“Complainant’s demonstration of continuous use in commerce and accompanying promotion and media recognition are adequate to sustain its claim of common law rights in the … marks.”).
In support of its contention that it has acquired common law rights in the NUTRIEN mark, Complainant asserts that it began use of the mark on January 2, 2018, thus predating the registration of all of the challenged domain names, and that it has since utilized the mark extensively in its operations and marketing in 14 countries. Complainant also contends that it is a publicly traded company and that it is among the world's largest purveyors of agricultural products and services, currently serving over 500,000 growers. Finally, Complainant pleads that, from January 2, 2018, it has operated a website accessed by the domain name <nutrien.com> to advertise its products and services. Respondent does not contest any of these assertions.
Therefore, on the uncontested facts presented, we conclude that Complainant has adequately demonstrated that it has common law rights in the NUTRIEN mark sufficient to satisfy the standing requirements of Policy ¶ 4(a)(i).
Turning to the core question posed by Policy ¶ 4(a)(i), we conclude from a review of the record that Respondent’s domain names <nutriienn.com>, <nuitrien.com>, <nutrienn.com>, <nutrlen.com>, and <pcsnutrien.com> are all confusingly similar to Complainant’s NUTRIEN mark. Each of the domain names contains the mark in its entirety or with the addition of one or more fugitive or substituted letters, plus, in each case, the generic Top Level Domain (“gTLD”) “.com.” In one instance the letters “pcs” are appended to the mark in a direct reference to the name of one of Complainant’s constituent companies, Potash Corporation of Saskatchewan. These alterations of the mark, made in forming the domain names, do not save them from the realm of confusing similarity under the standards of the Policy. See, for example, Bank of America Corporation v. Above.com Domain Privacy, FA 1629452 (Forum August 18, 2015) (finding that the <blankofamerica.com> domain name contained the entire BANK OF AMERICA mark, merely adding the gTLD ‘.com’ and the letter ‘l’ to create a common misspelling of the word ‘bank’). See also Coachella Music Festival, LLC v. Domain Administrator / China Capital Investment Limited, FA 1734230 (Forum July 17, 2017):
The addition of letters—particularly of those that create a common misspelling—fails to sufficiently distinguish a domain name from a registered mark.
Further see King Ranch IP, LLC v. E Miller, FA 1785596 (Forum June 6, 2018) (“Complainant’s trademark is used in-part with regard to barbecue related goods and services; the term “bbq” is thus suggestive of the KING RANCH trademark. Therefore, the Panel finds that the <kingranchbbq.com> domain name is confusingly similar to Complainant’s KING RANCH mark.”).
Under Policy 4(a)(ii), Complainant must make a prima facie showing that Respondent lacks rights to and legitimate interests in the <nutriienn.com>, <nuitrien.com>, <nutrienn.com>, <nutrlen.com>, and <pcsnutrien.com> domain names, whereupon the burden shifts to Respondent to show that it does have such rights or interests. See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Forum August 18, 2006) (finding that a UDRP complainant must make a prima facie case that a respondent lacks rights to or legitimate interests in a disputed domain name under UDRP ¶ 4(a)(ii) before the burden shifts to that respondent to show that it does have such rights or interests). See also AOL LLC v. Gerberg, FA 780200 (Forum September 25, 2006):
Complainant must … 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, … the burden shifts to Respondent to show that it does have rights or legitimate interests in the subject domain names.
Complainant has made out a sufficient prima facie showing under this head of the Policy. Respondent’s failure to respond to the Complaint therefore permits us to infer that Respondent does not have rights to or legitimate interests in the disputed domain name. See Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO December 21, 2000) (finding that a respondent’s failure to respond to a UDRP complaint allows a presumption that a complainant’s allegations are true unless they are clearly contradicted by the evidence). Nonetheless, we will examine the record before us, in light of the several considerations set out in Policy ¶ 4(c) (i)-(iii), to determine whether there is in it any basis for concluding that Respondent has rights to or legitimate interests in the contested domain name that are cognizable under the Policy.
We begin by noting that Complainant contends, and that Respondent does not deny, that Respondent has not been commonly known by the <nutriienn.com>, <nuitrien.com>, <nutrienn.com>, <nutrlen.com>, and <pcsnutrien.com> domain names, and that Complainant has not licensed or otherwise authorized Respondent to use the NUTRIEN mark. Moreover, the pertinent WHOIS information identifies the registrants of the several domain names only as
“pache pache,” wizzie wizzie,” “Technical Support,” “samantha Anderson,” “Coke,” “byrd building service” or “brd,” none of which resembles any of the domain names. On this record, we conclude that Respondent has not been commonly known by the disputed domain names so as to have acquired rights to or legitimate interests in them within the ambit of Policy ¶ 4(c)(ii). See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by the <chevron-europe.com> domain name where the relevant WHOIS information identified its registrant only as “Fred Wallace.” See also Navistar International Corporation v. N Rahmany, FA1505001620789 (Forum June 8, 2015) (finding, under Policy ¶ 4(c)(ii), that a respondent was not commonly known by a disputed domain name where a UDRP complainant had not authorized that respondent to incorporate its mark in a domain name).
We next observe that Complainant asserts, without objection from Respondent, that Respondent employs the contested domain names to pass itself off as Complainant to facilitate a fraudulent “phishing” scheme that targets Complainant’s customers by sending emails to them to secure payments of funds from them by impersonating employees of Complainant, including its invoicing coordinator. It should go without saying that such a use is neither a bona fide offering of goods or services by means of the domain names under Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use of them under Policy ¶ 4(c)(iii) such as would confirm in Respondent rights to or legitimate interests in the domain names as provided in those subsections of the Policy. See Emerson Electric Co. v. golden humble / golden globals, FA 1787128 (Forum June 11, 2018):
Passing off as a complainant through e-mails is evidence that a respondent lacks rights and legitimate interests under Policy ¶¶ 4(c)(i) & (iii).
See also Abbvie, Inc. v. James Bulow, FA 1701075 (Forum November 30, 2016):
Respondent uses the … domain name to pose as Complainant’s CEO by means of email addresses … in an attempt to determine Complainant’s ability to process a transfer. Using the domain name in this manner is neither a bona fide offering of goods and services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).
The Panel therefore finds that Complainant has satisfied the proof requirements of Policy ¶ 4(a)(ii).
We are persuaded by the evidence that Respondent uses the challenged domain names <nutriienn.com>, <nuitrien.com>, <nutrienn.com>, <nutrlen.com> and <pcsnutrien.com>, each of which we have found to be confusingly similar to Complainant’s NUTRIEN mark, to profit illicitly from the operation of a fraudulent phishing scheme. Under Policy ¶ 4(b)(iv), this stands as proof of Respondent’s bad faith in registering and using the domain names. See Qatalyst Partners LP v. Devimore, FA 1393436 (Forum July 13, 2011) (finding that the use of a disputed domain name in an e-mail address to pass itself off as a UDRP complainant in a phishing scheme was evidence of bad faith registration and use of the domain name Policy ¶ 4(b)(iv). See also Zoetis Inc. and Zoetis Services LLC v. VistaPrint Technologies Ltd, FA1506001623601 (Forum July 14, 2015):
Respondent’s attempt to use the … domain name to phish for personal information in fraudulent emails also constitutes bad faith pursuant to Policy ¶ 4(a)(iii).
We are also convinced by the evidence that Respondent knew of Complainant and its rights in the NUTRIEN mark when it registered the contested domain names. This too demonstrates Respondent’s bad faith in registering them. See, for example, Minicards Vennootschap Onder Firma Amsterdam v. Moscow Studios, FA 1031703 (Forum September 5, 2007) (finding that a respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name.")
The Panel may therefore find Respondent registered and uses the disputed domain names in bad faith per Policy ¶ 4(b)(iv).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that all of the domain names <nutriienn.com>, <nuitrien.com>, <nutrienn.com>, <nutrlen.com>, and <pcsnutrien.com> be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: November 13, 2018
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