The Mosaic Company v. MOSAIC GROUP
Claim Number: FA2301002029290
Complainant is The Mosaic Company (“Complainant”), represented by Nicholas S. Kuhlmann of Patterson Thuente IP, Minnesota. Respondent is MOSAIC GROUP (“Respondent”), Cameroon.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <mosaicc-group.com>, (‘the Domain Name’) registered with Google LLC.
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Complainant submitted a Complaint to Forum electronically on January 26, 2023; Forum received payment on January 26, 2023.
On January 27, 2023, Google LLC confirmed by e-mail to Forum that the <mosaicc-group.com> Domain Name is registered with Google LLC and that Respondent is the current registrant of the names. Google LLC has verified that Respondent is bound by the Google 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 January 30, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 21, 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@mosaicc-group.com. Also on January 30, 2023, 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 February 26, 2023 pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Dawn Osborne 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.
A. Complainant
The Complainant’s contentions can be summarised as follows:
The Complainant is the owner of the trade mark MOSAIC registered in the USA for fertilizer with first use recorded as 2004.
The Domain Name registered in 2023 is confusingly similar to the Complainant’s trade mark containing it in its entirety and adding a letter ‘c’, a hyphen, the generic term ‘group’ and the gTLD .com.
The Respondent has no rights or legitimate interests in the Domain Name, is not commonly known by it and is not authorised by the Complainant.
The Domain Name is not connected to an active web site but has been used for a fraudulent e mail scheme using the Complainant’s logo and the name of one of its directors. This cannot be a bona fide offering of goods or services or a legitimate non commercial fair use. It is deceptive registration and use in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Complainant is the owner of the trade mark MOSAIC registered in the USA for fertilizer with first use recorded as 2004.
The Domain Name registered in 2023 has been used for a fraudulent e mail scheme.
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 Domain Name consists of the Complainant's mark MOSAIC (registered, inter alia, in the USA for fertilizer with first use recorded as 2004), adding a letter ‘c’, a hyphen, the generic word ‘group’ and the gTLD .com.
The Panel agrees that misspellings such as the addition of a letter ‘c’ does not prevent confusing similarity between the Domain Name and the Complainant's trade mark pursuant to the Policy. See Twitch Interactive, Inc. v Antonio Teggi, FA 1626528 (Forum Aug 3, 2015)(finding that twitcch.tv is confusingly similar to the TWITCH TV trade mark because the domain name consisted of a common misspelling of the mark by merely adding the letter ‘c’).
Previous panels have found confusing similarity when a respondent merely adds a generic term to a sign confusingly similar to the Complainant's mark. See PG&E Corp. v Anderson, D2000-1264 (WIPO Nov. 22, 2000)(finding that respondent does not by adding common descriptive or generic terms create new or different marks). The addition of the generic word ‘group’ does not prevent confusing similarity between the Domain Name and the Complainant’s mark.
The Panel agrees that the addition of a hyphen to a sign confusingly similar to the Complainant's mark does not distinguish the Domain Name from the Complainant's registered trade mark pursuant to the Policy. See Health Devices Corp. v Aspen STC, FA 158254 (Forum July , 2003)(The addition of punctuation marks such as hyphens is irrelevant in the determination of confusing similarity pursuant to Policy 4 (a)(i). )
The gTLD .com does not serve to distinguish the Domain Name from the Complainant’s mark. See Red Hat Inc v Haecke FA 726010 (Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar to the Complainant’s registered mark.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Rights or Legitimate Interests
The Domain Name has been used in a fraudulent e mail phishing scheme impersonating one of the Complainant’s directors and using the Complainant’s logo. As such it cannot amount to the bona fide offering of goods and services or a legitimate non commercial or fair use. (See DaVita Inc. v Cynthia Rochelo FA 1738034 (Forum July 20, 2017) finding that ‘Passing off in furtherance of a fraudulent scheme is not considered a bona fide offering of goods or services or legitimate non commercial or fair use’.) The Complainant has not authorised the use of its mark. Since the Domain Name is being used to impersonate the Complainant the Respondent is clearly not, in fact, commonly known by the Complainant’s MOSAIC mark, and by extrapolation the Domain Name since MOSAIC is the distinctive part of the Domain Name, in the Respondent’s own right.
The Respondent has not provided a Response to this Complaint and the prima facie case evidenced by the Complainant has not been rebutted.
As such the Panelist finds that the Respondent does not have rights or legitimate interests in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
Registration and Use in Bad Faith
The use of the name of one of the Complainant’s directors and the Complainant’s logo in the Respondent’s fraudulent phishing e mail scheme in this case shows that the Respondent has actual knowledge of the Complainant, its rights, business and services. Impersonating a complainant by use of a complainant’s mark in a fraudulent phishing scheme is disruptive and evinces bad faith registration and use. See Microsoft Corporation v Terrence Green/ Whois Agent/Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr 4 2016)(finding that respondent’s use of the disputed domain name to send fraudulent e mails constituted bad faith registration and use pursuant to Policy 4 (b)(iii). )
As such, the Panelist believes that the Complainant has made out its case that the Domain Name was used in a fraudulent e mail scheme and registered and used in bad faith, and has satisfied the third limb of the Policy under para 4(b)(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 <mosaicc-group.com> domain name be TRANSFERRED from Respondent to Complainant.
Dawn Osborne, Panelist
Dated: February 27, 2023
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