Bunge Limited, Bunge SA and Bunge Deutschland GmbH v. Ekaterina Kochergina
Claim Number: FA2212002024841
Complainant is Bunge Limited, Bunge SA and Bunge Deutschland GmbH (“Complainant”), represented by Renee Reuter of 7700 Forsyth, Missouri. Respondent is Ekaterina Kochergina (“Respondent”), RU.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <groupbunge.com>, <oilbunge.com>, and <oil-bunge.com>, 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.
Charles a. Kuechenmeister, Panelist.
Complainant submitted a Complaint to Forum electronically on December 20, 2022; Forum received payment on December 20, 2022. The Complaint was submitted in Russian and English.
On December 22, 2022, Registrar of Domain Names REG.RU LLC confirmed by e-mail to Forum that the <groupbunge.com>, <oilbunge.com>, and <oil-bunge.com> domain names (the Domain Names) are registered with Registrar of Domain Names REG.RU LLC and that Respondent is the current registrant of the names. 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 28, 2022, Forum served the Complaint and all Annexes, including a Russian language Written Notice of the Complaint setting a deadline of January 17, 2023 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@groupbunge.com, postmaster@oilbunge.com, postmaster@oil-bunge.com. Also on December 28, 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 20, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister 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 a Response from Respondent.
Complainant requests that the Domain Names be transferred from Respondent to Complainant.
PRELIMINARY ISSUES
Multiple Complainants
Three parties, Bunge Limited, Bunge SA and Bunge Deutschland GmbH (“B. Deutschland”), filed this administrative proceeding as Complainants. The rules governing multiple complainants are Rule 3(a) and the Forum’s Supplemental Rule 1(e). Rule 3(a) states, “Any person or entity may initiate an administrative proceeding by submitting a complaint in accordance with the Policy and these Rules.” The Forum’s Supplemental Rule 1(e) defines “The Party Initiating a Complaint Concerning a Domain Name Registration” as the “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 this case, the Complaint alleges that all three Complainants are related in that Bunge SA and B. Deutschland are subsidiaries of and indirectly wholly owned by Bunge Limited. This relationship has frequently been held to establish the required nexus between two complainants. Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II v. kim seong su, FA1904001840242 (June 3, 2019) (“Skechers U.S.A., Inc. II is a wholly owned subsidiary of Skechers U.S.A., Inc. . . . As the two Complainants in this case are in fact closely related, being part of the same company structure, the Panel accepts that the evidence in the Complaint is sufficient to establish a sufficient nexus or link between the Complainants, and the Panel will therefore treat them together as a single entity in this proceeding.”), The Panel finds that the three Complainants have a sufficient nexus to each other and to the matters complained of such that they should be treated as if a single entity. It is thus proper for all three named Complainants to file and maintain this proceeding. The Panel will treat them as a single entity for the purposes of this proceeding. All references to “Complainant” in this Decision, even though in the singular, are to all named Complainants.
Multiple Domain Names
The Complaint relates to three Domain Names. Paragraph 3(c) of the 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.” Complainant did not address this issue but all three Domain Names were registered with the same registrar on the same day, and all were registered to the named Respondent Ekaterina Kochergina (WHOIS printout submitted as Complaint Exhibit A). This is convincing evidence that all three Domain Names are registered to the same person or entity or are under common control, and the Panel will proceed as to all of them.
Language of the Proceedings
According to the Registrar, the registration agreement for the Domain Name is written in Russian. Rule 11(a) provides that the language of the proceedings is the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the case. Complainant filed its Complaint in both English and Russian. Complainant does not address the language issue but the Panel is not proficient in the Russian language and, subject to the Rules, it may be appropriate to conduct these proceedings in English. Factors which previous panels have seen as important include evidence showing that the respondent can understand the language of the complaint, the language of the domain name, the content on any web pages resolving from the domain name, prior correspondence between the parties, and potential unfairness or unwarranted delay in ordering translation of the pleadings and the Decision. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (WIPO Overview 3.0), at ¶ 4.5.1, The Argento Wine Company Limited v. Argento Beijing Trading Company, D2009-0610 (WIPO July 1, 2009) (panel exercising discretion in deciding that the language of the proceedings advance in English, contrary to the Registration Agreement, based on evidence that respondent has command of the language), Finter Bank Zurich v. Shumin Peng, D2006-0432 (WIPO June 12, 2006) (deciding that the proceeding should be in English, stating, “It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her ability to articulate the arguments for the case.”).
As stated above, Complainant filed its Complaint in English and Russian, and the Written Notice of the Complaint, written in both English and Russian, was served upon Respondent in accordance with Rules 1 and 2. There is no evidence before the Panel that Respondent is proficient or conversant in the English language, but Respondent has not submitted a Response or any indication that she desires to participate in this proceeding, in the Russian language or otherwise. Under these circumstances the Panel finds that the additional time and expense of proceeding in Russian would be unwarranted inasmuch as the only party who might benefit from that has declined to participate. For this reason, the Panel determines that this proceeding will be conducted in English.
A. Complainant
Complainant produces and distributes tropical oils. It has rights in the BUNGE mark through its registration of that mark with the United States Patent and Trademark Office (“USPTO”). Respondent’s <groupbunge.com>, <oilbunge.com>, and <oil-bunge.com> Domain Names are virtually identical and confusingly similar to Complainant’s mark. Each incorporates the BUNGE mark in its entirety, merely adding a generic term and the “.com” generic top-level domain (“gTLD”). The <oil-bunge.com> Domain Name also adds a hyphen.
Respondent has no legitimate interests in the Domain Names. She is not commonly known by the Domain Names and Complainant has not authorized or licensed her to use its BUNGE mark. Additionally, Respondent does not use the Domain Names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use because each resolves to an inactive webpage.
Respondent registered and uses the Domain Names in bad faith. She has engaged in a pattern of bad faith registration and use, the Domain Names resolve to inactive webpages, and Respondent registered the Domain Names with constructive/actual knowledge of Complainant’s rights in the BUNGE mark.
B. Respondent
Respondent did not submit a Response in this proceeding.
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 a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:
(1) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(2) the 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, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations 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. Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. 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”), WIPO Overview 3.0, at ¶ 4.3 (“In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent’s default—a complainant has failed to prove its case.”).
The Panel finds as follows with respect to the matters at issue in this proceeding:
The BUNGE mark was registered to Complainant with the USPTO (Reg. No. 4,524,954) on May 6, 2014 (TESS printout included in Complaint Exhibit B). Complainant’s registration of its mark with the USPTO establishes its rights in that mark for the purposes of Policy ¶ 4(a)(i). 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).”).
Respondent’s <groupbunge.com>, <oilbunge.com>, and <oil-bunge.com> Domain Names are identical or confusingly similar to Complainant’s BUNGE mark. They incorporate the mark in its entirety, merely adding a generic term, a gTLD and in the case of the <oil-bunge.com> Domain Name a hyphen. These changes do not distinguish the Domain Names from Complainant’s mark for the purposes of Policy ¶ 4(a)(i). Ant Small and Micro Financial Services Group Co., Ltd. v. Ant Fin, FA 1759326 (Forum Jan. 2, 2018) (“Respondent’s <antfinancial-investorrelations.com> Domain Name is confusingly similar to Complainant’s ANT FINANCIAL mark. It incorporates the mark entirely. It adds a hyphen, the descriptive terms “investor relations,” and the “.com” gTLD, but these additions are insufficient to distinguish the Domain name from complainant’s mark for the purposes of Policy ¶ 4(a)(i).”), The Toronto-Dominion Bank v. George Whitehead, FA 1784412 (Forum June 11, 2018) (“[S]light differences between domain names and registered marks, such as the addition of words that describe the goods or services in connection with the mark and gTLDs, do not distinguish the domain name from the mark incorporated therein per Policy ¶ 4(a)(i).”). The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity “typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name.” Notwithstanding the changes described above, Complainant’s mark is clearly recognizable within the Domain Names.
For the reasons set forth above, the Panel finds that the Domain Names are identical or confusingly similar to the BUNGE mark, in which Complainant has substantial and demonstrated rights.
If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. 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”). If a respondent fails to come forward with such evidence, the complainant’s prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.
Policy ¶ 4(c) lists the following three nonexclusive circumstances, any one of which if proven can demonstrate a respondent’s rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):
(i) Before any notice to the respondent of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services;
(ii) The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or
(iii) The respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
Complainant asserts that Respondent has no rights or legitimate interests in the Domain Name because (i) she is not commonly known by the Domain Names, Complainant has not authorized or licensed her to use its BUNGE mark, and (iii) she is not using the Domain Names in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use because they all resolve to inactive webpages. These allegations are addressed as follows:
The WHOIS information furnished to Forum by the registrar and the WHOIS printouts submitted in Complaint Exhibit A list “Ekaterina Kochergina / Private Person” as the registrant of the Domain Names. Neither of these names bears any resemblance to the Domain Names. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Guardair Corporation v. Pablo Palermo, FA1407001571060 (Forum Aug. 28, 2014) (holding that the respondent was not commonly known by the <guardair.com> domain name according to Policy ¶ 4(c)(ii), as the WHOIS information lists “Pablo Palermo” as registrant of the disputed domain name), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Panel is satisfied that Respondent has not been commonly known by the Domain Names.
Complainant states that it has not authorized or licensed Respondent to use its mark. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant’s mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) (”Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant’s trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.”).
Complainant included screenshots of the websites resolving from the Domain Names in the Complaint. All three websites are exactly the same except that each pertains to a different Domain Name. They are all parking pages which have no substantive content. This is not an active use of the Domain Names. As such it is neither a bona fide offering of goods or services as contemplated by Policy ¶ 4(c)(i) nor a legitimate noncommercial or fair use as contemplated by Policy ¶ 4(c)(iii). Morgan Stanley v. Francis Mccarthy / Baltec Marine Llc, FA 1785347 (Forum June 8, 2018) (“both Domain Names resolve to a web site that shows the words, ‘Not Found, The requested URL / was not found on this server.’ ’ Inactive holding of a domain name does not qualify as a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(i), or a legitimate non-commercial or fair use within the meaning of Policy ¶ 4(c)(iii).”).
The evidence furnished by Complainant establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Names.
Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:
(i) circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent’s documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent’s web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation or endorsement of the respondent’s web site or location or of a product of service on the respondent‘s web site or location.
The evidence of Respondent’s conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration and use. As discussed above, the Domain Names resolve to inactive websites. Passive holding of a domain name is evidence of bad faith. This may not fit within any of the circumstances described in Policy ¶ 4(b) but that paragraph recognizes that mischief can assume many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005), Bloomberg Finance L.P. v. Domain Admin - This Domain is For Sale on GoDaddy.com / Trnames Premium Name Services, FA 1714157 (Forum Mar. 8, 2017) (determining that Policy ¶ 4(b) provisions are merely illustrative of bad faith, and that the respondent’s bad faith may be demonstrated by other allegations of bad faith under the totality of the circumstances). Given the non-exclusive nature of Policy ¶ 4(b), failure to make active use of a confusingly similar domain name is evidence of bad faith. Caravan Club v. Mrgsale, FA 95314 (Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that [failure to make an active use] of a domain name permits an inference of registration and use in bad faith).
Complainant asserts that based upon the USPTO registration of Complainant’s mark in 2014, Respondent knew or should have known of Complainant and its BUNGE mark when she registered the Domain Names in August 2022 (WHOIS reports submitted in Complaint Exhibit A show creation dates). Arguments of bad faith based on constructive notice are generally rejected, and Panels have most frequently declined to find bad faith based upon constructive knowledge. The Way Int'l, Inc. v. Diamond Peters, D2003-0264 (WIPO May 29, 2003) ("As to constructive knowledge, the Panel takes the view that there is no place for such a concept under the Policy."). Nevertheless, it is evident that Respondent had actual knowledge of Complainant and its mark when she registered the Domain Names. Complainant’s BUNGE mark was registered in 2014 and had been used in commerce at least since the 2005 first use date shown in the TESS printout included in Complaint Exhibit B. BUNGE is a distinctive, whimsical and fanciful word, with no intrinsic meaning, and it would not normally occur to a person choosing a domain name, other than for the purpose of targeting Complainant. Registering a confusingly similar domain name with actual knowledge of a complainant’s rights in its mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii). Univision Comm'cns Inc. v. Norte, FA 1000079 (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).
For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Names in bad faith within the meaning of Policy ¶ 4(a)(iii).
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 <groupbunge.com>, <oilbunge.com>, and <oil-bunge.com> Domain Names be TRANSFERRED from Respondent to Complainant.
Charles A. Kuechenmeister, Panelist
January 23, 2023
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