Cargill Incorporated v. ANABELLE GUILLET
Claim Number: FA1608001687181
Complainant is Cargill Incorporated (“Complainant”), represented by Patrick J. Gallagher of Norton Rose Fulbright US LLP, Minnesota. Respondent is ANABELLE GUILLET (“Respondent”), France.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cargill-group.com>, registered with REGISTER.IT SPA.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 5, 2016; the Forum received payment on August 5, 2016.
On August 08, 2016, REGISTER.IT SPA confirmed by e-mail to the Forum that the <cargill-group.com> domain name is registered with REGISTER.IT SPA and that Respondent is the current registrant of the name. REGISTER.IT SPA has verified that Respondent is bound by the REGISTER.IT SPA 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 August 8, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 29, 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-group.com. Also on August 8, 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 September 6, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 has registered the CARGILL trademark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 881,120, registered November 25, 1969). The mark is used in connection with Complainant’s long-standing business activities pertaining to a wide variety of goods and services in the food, agriculture, and financial sectors and related industries. The <cargill-group.com> domain name is confusingly similar to the CARGILL trademark because the domain name contains the entire mark, in addition to other minor alterations, such as a hyphen, the generic term “group,” and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests. Respondent is not commonly known as the domain name, nor is Respondent a licensee of Complainant. Furthermore, Respondent is not making a bona fide offering or legitimate noncommercial or fair use of the <cargill-group.com> domain name. Respondent is not actively using the domain name,
Respondent has engaged in bad faith registration and use of the <cargill-group.com> domain name. Respondent is not actively using the domain name. Also, due to the fame and notoriety of the CARGILL trademark, Respondent registered the domain name with actual and/or constructive knowledge of Complainant’s trademark rights.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Cargill Incorporated, has rights in the CARGILL trademark through registration with the USPTO (Reg. No. 881,120, registered November 25, 1969). The mark is used in connection with Complainant’s long-standing business activities pertaining to a wide variety of goods and services in the food, agriculture, and financial sectors and related industries. The <cargill-group.com> domain name is confusingly similar to the CARGILL trademark.
Respondent, ANABELLE GUILLET, registered the <cargill-group.com> domain name on June 16, 2016.
Respondent has no rights or legitimate interests in the <cargill-group.com> domain name. Respondent is not commonly known by the domain name, nor is Respondent a licensee of Complainant. Furthermore, Respondent is not making a bona fide offering or legitimate noncommercial or fair use of the domain name. Respondent is not actively using the domain name,
Respondent has engaged in bad faith registration and use of the <cargill-group.com> domain name. Respondent is not actively using the domain name. Respondent registered the domain name with actual knowledge of Complainant’s CARGILL trademark.
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.”).
Complainant has rights in the CARGILL trademark under Policy ¶ 4(a)(i) through registration with the USPTO. See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office.).
Respondent’s <cargill-group.com> domain name is confusingly similar to the CARGILL trademark. The domain name contains the entire mark, in addition to other minor alterations, such as a hyphen, the generic term “group,” and the generic top-level domain (“gTLD”) “.com.”
Respondent is not commonly known by the <cargill-group.com> domain name under Policy ¶ 4(c)(ii). Complainant has not authorized Respondent to use the CARGILL mark. The WHOIS information lists “ANABELLE GUILLET” as the registrant of record for the disputed domain name. See M. Shanken Commc’ns v. WORLDTRAVELERSONLINE.COM, FA 740335 (Nat. Arb. Forum Aug. 3, 2006) (finding that the respondent was not commonly known by the <cigaraficionada.com> domain name under Policy ¶ 4(c)(ii) based on the WHOIS information and other evidence in the record).
Respondent fails to use the <cargill-group.com> domain name for a bona fide offering of goods or services or a legitimate noncommercial or fair use. Respondent is not actively using the domain name. See Pharmacia & Upjohn AB v. Romero, D2000-1273 (WIPO Nov. 13, 2000) (finding no rights or legitimate interests where the respondent had made no use of the domain name in question).
Respondent has engaged in bad faith registration and use of the <cargill-group.com> domain name under Policy ¶ 4(a)(iii). Respondent is not actively using the disputed domain name. See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”).
Respondent registered the <cargill-group.com> domain name with actual knowledge of Complainant's rights in the CARGILL mark. Therefore, Respondent registered and uses the domain name in bad faith under Policy ¶ 4(a)(iii). See Univision Comm'cns Inc. v. Norte, FA 1000079 (Nat. Arb. Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).
Complainant 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-group.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: September 20, 2016
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