Bunge Limited, Bunge SA and Bunge Deutschland GmbH v. SLidiya Popovtseva
Claim Number: FA2211002021538
Complainant is Bunge Limited, Bunge SA and Bunge Deutschland GmbH (“Complainant”), represented by Renee Reuter of 7700 Forsyth, Missouri. Respondent is SLidiya Popovtseva (“Respondent”), RU.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <bungesng.group>, registered with Registrar of Domain Names REG.RU LLC.
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 Neil Anthony Brown KC as Panelist.
Complainant submitted a Complaint to Forum electronically on November 23, 2022; Forum received payment on November 23, 2022. The Complaint was submitted in Russian and English.
On November 24, 2022, Registrar of Domain Names REG.RU LLC confirmed by e-mail to Forum that the <bungesng.group> domain name is registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the name. Registrar of Domain Names REG.RU LLC has verified that Respondent is bound by the Registrar of Domain Names REG.RU 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 December 5, 2022, Forum served the Complaint and all Annexes, including a Russian language Written Notice of the Complaint, setting a deadline of December 27, 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@bungesng.group. Also on December 5, 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, Forum transmitted to the parties a Notification of Respondent Default.
On January 3, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed The Honorable Neil Anthony Brown KC as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that 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, 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
There are three Complainants in this matter: Bunge Limited, Bunge SA, and Bunge Deutschland GmbH. Bunge SA and Bunge Deutschland GmbH are wholly indirectly owned by Bunge Limited. The question therefore arises whether all three of those parties may join in the one Complaint.
The relevant rules governing multiple complainants are UDRP Rule 3(a) and Forum’s Supplemental Rule 1(e). UDRP Rule 3(a) states, “Any person or entity may initiate an administrative proceeding by submitting a complaint.” 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 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.”).
The Panel accepts that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants so as to treat them all as a single entity in this proceeding. The Complaint has therefore been validly filed and may proceed on that basis. It is also appropriate that the Complainants should be collectively referred to as “Complainant” in this decision and the Panel will follow that course.
Preliminary Issue: Language of the Proceeding
The Panel notes that the Registration Agreement is written in the Russian language, thereby making the language of the proceedings to be Russian.
Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Russian language Complaint and Commencement Notification, and, absent a Response, determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant made the following contentions:
Complainant is a leading producer of tropical oils. 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). See Compl. Ex. B. Respondent’s <bungesng.group> domain name is virtually identical and confusingly similar to Complainant’s mark because it incorporates the BUNGE mark in its entirety and adds the letters “sng” and the “.group” generic top-level domain (“gTLD”).
Respondent has no legitimate interests in the <bungesng.group> domain name. Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed Respondent any rights in the BUNGE mark. Additionally, Respondent does not use the disputed domain name for any bona fide offering of goods or services or legitimate noncommercial or fair use. Instead, Respondent takes advantage of association with Complainant’s well-known mark and engages in typosquatting.
Respondent registered and uses the <bungesng.group> domain name in bad faith. The disputed domain name resolves to an inactive webpage. Respondent registered the disputed domain name in order to participate in typosquatting. Respondent makes use of a privacy service. Finally, Respondent registered the disputed domain name with constructive/actual knowledge of Complainant’s rights in the BUNGE mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
1. Complainant is a United States company that is a global leader in the provision of oil for business customers and a supplier of choice food manufacturers.
2. Complainant has established its rights to the BUNGE mark by virtue of the registration of the mark with the USPTO (e.g., Reg. No. 4,524,954 registered May 6, 2014).
3. Respondent registered the <bungesng.group> domain name on August 31, 2022.
4. Respondent has opportunistically taken advantage of an association with Complainant’s well-known mark to redirect users to its own website and has also engaged in typosquatting.
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 first question that arises is whether Complainant has rights in a trademark or service mark on which it may rely. Complainant submits that it has rights in the BUNGE mark based upon the registration of the mark with the USPTO (e.g., Reg. No. 4,524,954 registered May 6, 2014). See Compl. Ex. B. Registration of a mark with the USPTO is a valid showing of rights in a mark under Policy ¶ 4(a)(i). See Nintendo of America Inc. v. lin amy, FA 1818485 (Forum Dec. 24, 2018) ("Complainant’s ownership of a USPTO trademark registration for the NINTENDO mark evidences Complainant’s rights in such mark for the purposes of Policy ¶ 4(a)(i).”). Since Complainant provides evidence of registration of the BUNGE mark with the USPTO, the Panel finds that the Complainant has rights in the mark under Policy 4(a)(i).
The next question that arises is whether the disputed domain name is identical or confusingly similar to Complainant’s BUNGE mark. Complainant argues Respondent’s <bungesng.group> domain name is identical or confusingly similar to Complainant’s BUNGE mark. The addition of a gTLD and extraneous letters fails to distinguish sufficiently a disputed domain name from a mark per Policy ¶ 4(a)(i). See Bittrex, Inc. v. Sergey Valerievich Kireev / Kireev, FA 1784651 (Forum June 5, 2018) (holding that the domain name consists of the BITTREX mark and adds “the letters ‘btc’ and the gTLD .com which do not distinguish the Domain Name from Complainant’s mark.”); see also Roche Therapeutics Inc. v. Williams Shorell, FA 1684961 (Forum Aug. 30, 2016) (“Complainant asserts Respondent’s <boniva.top> domain name is identical to the BONIVA mark. The addition of a generic top level domain to a mark does not differentiate the domain from said mark under Policy ¶ 4(a)(i).”). Here, the disputed domain name contains the BUNGE mark in its entirety while adding in the letters “sng” and the “.group” gTLD. Therefore, the Panel finds the disputed domain name is confusingly similar to Complainant’s mark per Policy ¶ 4(a)(i).
Complainant has thus made out the first of the three elements that it must establish.
It is now well established that Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii), then 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”).
The Panel finds that Complainant has made out a prima facie case that arises from the following considerations:
(a) Respondent has chosen to take Complainant’s BUNGE mark and to use it in its domain name adding only the letters “sng” to the mark;
(b) Respondent registered the domain name on August 31, 2022;
(c) Respondent has opportunistically taken advantage of an association with Complainant’s well-known mark to redirect users to its own website and has also engaged in typosquatting;
(d) Respondent has engaged in these activities without the consent or approval of Complainant;
(e) Complainant contends that Respondent lacks rights or legitimate interests in the <bungesng.group> domain name since Respondent is not commonly known by the disputed domain name and Complainant has not authorized or licensed to Respondent any rights in the BUNGE mark. WHOIS information listing a privacy service as registrant may indicate that the respondent is not commonly known by the disputed domain name under Policy ¶ 4(c)(ii). See CheapCaribbean.com, Inc. v. Moniker Privacy Services, FA1411001589962 (Forum Jan. 1, 2015) (“The Panel notes that the WHOIS information merely lists a privacy service as registrant. In light of Respondent’s failure to provide any evidence to the contrary, the Panel finds there is no basis to find Respondent is commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii).”). In addition, a lack of authorization to use a complainant’s mark may also indicate that a respondent is not commonly known by the disputed domain name. See Bittrex, Inc. v. Operi Manaha, FA 1815225 (Forum Dec. 10, 2018) (concluding that the respondent was not commonly known by the <appbittrex.com> domain name where the WHOIS information listed Respondent as “Operi Manaha,” and nothing else in the record suggested Respondent was authorized to use the BITTREX mark.). The WHOIS information for the disputed domain name lists a privacy service as the registrant, and a verification email from the registrar lists the registrant as “SLidiya Popovtseva”. See Compl. Ex. A; Registrar Verification Email. Complainant further submits it has not licensed or otherwise authorized Respondent to use Complainant’s BUNGE mark. Therefore, the Panel finds Respondent is not commonly known by the disputed domain name per Policy ¶ 4(c)(ii);
(f) Complainant argues that Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use as the disputed domain name makes use of Complainant’s famous mark. Where the Respondent takes advantage of a famous mark to redirect users to its own website, the Panel may find the respondent fails to make a bona fide offering of goods or services or a legitimate noncommercial or fair use per Policy ¶¶ 4(c)(i) or (iii). See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”). Here, Complainant contends that Respondent is using the disputed domain name to benefit from Complainant’s well-known mark and harm Complainant’s reputation and business. As the Panel agrees, the Panel finds that Respondent fails to use the disputed domain name for a bona fide offering of goods or services or legitimate noncommercial or fair use under Policy ¶¶ 4(c)(i) or (iii);
(g) Complainant argues that, because the domain name includes only the mark while adding letters to make a typographical error, Respondent has engaged in typosquatting and thus demonstrated its lack of rights or legitimate interests in Complainant’s mark. See Chegg Inc. v. yang qijin, FA1503001610050 (Forum April 23, 2015) (“Users might mistakenly reach Respondent’s resolving website by misspelling Complainant’s mark. Taking advantage of Internet users’ typographical errors, known as typosquatting, demonstrates a respondent’s lack of rights or legitimate interests under Policy ¶ 4(a)(ii).”). Here, the <bungesng.group> domain name adds the letters “sng” to Complainant’s BUNGE mark. As the Panel agrees, it finds that Respondent lacks rights or legitimate interests in the disputed domain name, per Policy ¶ 4(a)(ii).
All of these matters go to make out the prima facie case against Respondent.
As Respondent has not filed a Response or attempted by any other means to rebut the prima facie case against it, the Panel finds that Respondent does not have a right or legitimate interest in the disputed domain name.
Complainant has thus made out the second of the three elements that it must establish.
It is clear that to establish bad faith for the purposes of the Policy, Complainant must show that the disputed domain name was registered in bad faith and has been used in bad faith. It is also clear that the criteria set out in Policy ¶ 4(b) for establishing bad faith are not exclusive, but that Complainants in UDRP proceedings may also rely on conduct that is bad faith within the generally accepted meaning of that expression.
Having regard to those principles, the Panel finds that the disputed domain name was registered and used in bad faith. That is so for the following reasons.
First, while Complainant does not make any contentions that fall within the articulated provisions of Policy ¶ 4(b), the Panel notes that these provisions are meant to be merely illustrative of bad faith, and that Respondent’s bad faith may be demonstrated by ancillary evidence considered under the totality of the circumstances. See Digi Int’l Inc. v. DDI Sys., FA 124506 (Forum Oct. 24, 2002) (determining that Policy ¶ 4(b) sets forth certain circumstances, without limitation, that shall be evidence of registration and use of a domain name in bad faith). In that regard, Complainant argues that, because Respondent fails to make an active use of the disputed domain name, Respondent has demonstrated bad faith registration and use. Inactive holding may in and of itself be considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Regions Bank v. Darla atkins, FA 1786409 (Forum June 20, 2018) (“Respondent registered and is using the domain name in bad faith under Policy ¶ 4(a)(iii) because Respondent uses the domain name to host an inactive website.”). Here, Complainant contends that the disputed domain name resolves to an inactive webpage. As the Panel agrees, it finds that Respondent’s registration and use of the disputed domain name to be in bad faith, pursuant to Policy ¶ 4(a)(iii).
Secondly, Complainant argues that, because the domain name includes only the mark while adding letters to make a typographical error, Respondent has engaged in typosquatting and thus demonstrated bad faith registration and use. Typosquatting may in and of itself be considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Adorama, Inc. v. Moniker Privacy Services, FA1503001610020 (Forum May 1, 2015) (“Respondent has also engaged in typosquatting, which is additional evidence of bad faith registration and use under Policy ¶ 4(a)(iii). Respondents who capitalize on common typing errors engage in bad faith registration under Policy ¶ 4(a)(iii).”). As previously mentioned, Complainant contends that <bungesng.group> is an example of typosquatting. As the Panel agrees, it finds that Respondent’s registration and use of the disputed domain name to be in bad faith, pursuant to Policy ¶ 4(a)(iii).
Thirdly, Complainant contends that, because Respondent made use of a privacy service, it has demonstrated bad faith registration and use. Use of a privacy service may in and of itself be considered evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Robert Half International Inc. v. robert arran, FA 1764367 (Forum Feb. 5. 2018) (“Respondent's use of a privacy registration service in an attempt to conceal his identity, though not itself dispositive, is a further indication of bad faith.”). Here, Complainant provides evidence of Respondent’s use of a privacy shield. See Compl. Ex. A. As the Panel agrees, it finds that Respondent’s registration and use of the disputed domain name to be in bad faith, pursuant to Policy ¶ 4(a)(iii).
Fourthly, Complainant argues that Respondent had actual and/or constructive knowledge of Complainant's rights in the BUNGE mark. Although panels have not generally regarded constructive notice to be sufficient for a finding of bad faith, it is open to the Panel to find that Respondent had actual knowledge of Complainant's mark and rights and therefore determine that Respondent registered the disputed domain name in bad faith under Policy ¶ 4(a)(iii). See Nat'l Patent Servs. Inc. v. Bean, FA 1071869 (Forum Nov. 1, 2007) ("[C]onstructive notice does not support a finding of bad faith registration."); see also Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"). Here, Complainant argues that because of the notoriety and widespread use of Complainant’s mark, Respondent had actual knowledge of Complainant's mark and rights. As the Panel agrees, the Panel finds bad faith per Policy ¶ 4(a)(iii).
Fifthly, in addition and having regard to the totality of the evidence, the Panel
finds that, in view of Respondent’s registration of the disputed domain name using the BUNGE mark and in view of the conduct that Respondent has
engaged in when using the domain name, Respondent registered and used it in bad faith within the generally accepted meaning of that expression.
Complainant has thus made out the third of the three elements that it must establish.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <bungesng.group> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Neil Anthony Brown KC
Panelist
Dated: January 4, 2023
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page