The Complainant is JBS S.A. of Sao Paulo, Brazil / Swift Brands Company of Greeley, Colorado, United States of America (“United States”), represented by Müller Mazzonetto, Brazil.
The Respondent is Domain Admin, C/O ID#10760 Privacy Protection Service INC of Nobby Beach, Queensland, Australia / Harshad Panchal of Mumbai, India, represented by UDRPro, LLC, United States. 2. The Domain Name and Registrar
The disputed domain name is registered with BigRock Solutions Pvt Ltd. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 6, 2017. On March 7, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 8, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 10, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 30, 2017. The Respondent sent several communications to the Center on March 10, 2017, March 13, 2017, March 15, 2017, March 23, 2017 and March 27, 2017.
By request of the Respondent, and in accordance with the Rules, paragraph 5(b), the Center extended the Response due date to April 3, 2017. The Response was filed with the Center on March 31, 2017.
In response to a communication from the Respondent, dated April 23, 2017, concerning the jurisdiction in which a decision rendered by the Administrative Panel should be challenged, on April 25, 2017 the Center confirmed that the Complainant submitted to the jurisdiction of the courts at the domain name holder’s address, that the Center is not responsible for the implementation of any decision as a result of this proceeding and that the Respondent is requested to address its questions to the concerned Registrar.
The Center appointed Christopher J. Pibus as the sole panelist in this matter on April 23, 2017. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background
The Complainant operates many agricultural and food-related businesses, including a business providing processed food products under the trade name and trademark JBS. The Complainant employes over 200,000 employees worldwide, and has 340 production units. The Complainant exports animal protein products to over 150 countries around the world and has received numerous awards. The Complainant owns many trademark registrations for the trademark JBS in the United States and Brazil covering different products, including meat and process meat products. A representative sample of those registrations is as follows:
United States Trademark Registration No. 3,772,127 for JBS Design, registered on March 11, 2008.
United States Trademark Registration No. 4,019,805 for JBS, registered on August 30, 2011.
United States Trademark Registration No. 3,555,182 for JBS (and Design), registered on December 30, 2008.
United States Trademark Registration No. 4,399,735 for JBS (and Design), registered on September 10, 2013.
Brazilian Trademark Registration No. 826207650 for JBS, registered on July 15, 2008.
Brazilian Trademark Registration No. 827834985 for JBS, registered on January 22, 2008.
Brazilian Trademark Registration No. 827835000 for JBS, registered on January 22, 2008.
Brazilian Trademark Registration No. 827834993 for JBS, registered on January 22, 2008.
Brazilian Trademark Registration No. 827835019 for JBS, registered on January 22, 2008.
Brazilian Trademark Registration No. 827835027 for JBS, registered on January 22, 2008.
Brazilian Trademark Registration No. 827835043 for JBS, registered on January 22, 2008.
Brazilian Trademark Registration No. 829676686 for JBS, registered on December 21, 2010.
The Complainant’s trademark registrations date back to March 17, 2004. The Complainant has actively promoted and advertised its JBS trademark and JBS-branded food products particularly in Brazil for many years.
The Complainant also owns several domain name registrations, including the following:
The Respondent registered the disputed domain name on September 13, 2012, and at the time the Complaint was filed, the domain name reverted to a website which provides information about vegetarian foods and specific dietary information. 5. Parties’ Contentions A. Complainant Confusingly Similar
The Complainant submits that it owns many trademark registrations for the trademark JBS, including those listed in paragraph 4 of this Decision.
The Complainant further contends that the disputed domain name is virtually identical to the Complainant’s registered JBS trademark, as it consists entirely of the distinctive term “jbs” as a main element, together with the descriptive word “foods”.
Accordingly, the Complainant contends that the disputed domain name is confusingly similar to the Complainant’s registered JBS trademark. Rights and Legitimate interests
The Complainant submits that the Respondent does not have any rights or legitimate interests in the disputed domain name. The Respondent is not commonly known by the name “jbs”, and has never been authorized or licensed by the Complainant. The Complainant further contends that the Respondent has not used the disputed domain name in a bona fide offering of goods and services. At the time the Complaint was filed, the disputed domain name reverted to a website which promotes ideas and practices related to vegetarianism, which are antithetical to Complainant’s meat-related business. As such, Respondent’s website denigrates the Complainant’s registered trademark and of the Complainant’s reputation and goodwill in its trade name and trademark. Registered and Used in Bad Faith
The Complainant submits that the Respondent has registered and is using the disputed domain name in bad faith because (i) the Respondent could not have been unaware of the Complainant’s registered trademark rights in JBS, when the Respondent registered the confusingly similar disputed domain name; (ii) the Respondent was contacted by the Complainant and put on notice of its registered trademark rights in the JBS mark, but Respondent replied with a vague and evasive response; (iii) the Respondent is using the disputed domain name to revert to a website which features content which denigrates the image and reputation of the Complainant’s registered trademark and trade name; and (iv) the Respondent is attempting to target the Complainant to interfere with the Complainant’s business and/or sell the disputed domain name to the Complainant for an amount greater than the Respondent’s out-of-pocket expenses. B. Respondent
The Respondent submits that he operates a website at the disputed domain name which is a noncommercial and not-for-profit website that provides free information related to vegetarianism and healthy living, specifically focused on the teachings of the Hindu deity Lord Jagannath. The Respondent states that Lord Jagannath’s teachings focus on eating habits and encourage a pure vegetarian lifestyle, and that Lord Jagannath’s worshippers pray to Balarama (Lord Jagannath’s brother) and Subhadra (Lord Jagannath’s sister). The Respondent states that he is a devotee of all three deities, and has created the name “jbsfoods” as an acronym from the first letters of each of the deities’ names. Internet users when visiting the website at the disputed domain name are directed to a graphic image of the three deities on the home page.
The Respondent states that the website caters to followers of Hinduism, for whom “jbs” is familiar as a commonly used acronym. The disputed domain name reverts to a website that does not contain any commercial links or content. The Respondent claims that he does not make any revenue or profits from the website and the information it provides. The Respondent also claims that the principal purpose of the disputed domain name and website is to publish opinions, testimonies and teachings of Lord Jagannath that visitors can incorporate into their daily life.
The Respondent states that he resides in Mumbai, India and had no knowledge of the Complainant or the Complainant’s registered trademark. Further, the Respondent states that he did not register the disputed domain name to interfere with the Complainant’s business, and that the Complainant actually owns several domain names which it uses to promote and advertise its products and services. The Respondent states that there is no evidence on the website at the disputed domain name that denigrates or makes reference to the Complainant or the Complainant’s registered trademark. The Respondent also states that he never offered the disputed domain name to the Complainant. The Respondent denies that he registered the disputed domain name in bad faith or used the disputed domain name in bad faith under the terms of the Policy.
The Respondent also alleges reverse domain name hijacking by the Complainant. 6. Discussion and Findings
According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) The disputed domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights;
(ii) The Respondent has no rights or legitimate interest in respect of the disputed domain name; and
(iii) The disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Complainant does have registered trademark rights in the mark JBS by virtue of the trademark registrations listed in paragraph 4 of this decision.
The Panel further finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark JBS, as the three-letter element of the registration has been replicated in the disputed domain name. Further, the addition of the descriptive word “foods” does not serve to distinguish the disputed domain name from the registered trademark JBS, particularly in the context of Complainant’s field of business.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a) of the Policy. B. Rights or Legitimate Interests
On review of the evidence filed in this proceeding, the Panel finds that the Complainant has failed to establish the absence of rights or legitimate interests in the disputed domain name in the hands of the Respondent. The Respondent’s evidence that the disputed domain name is a combination of the first letters of the three deities Lord Jagannath, Balarama and Subhadra is uncontradicted. The Panel has reviewed the website that is associated with the disputed domain name and cannot locate any reference to the Complainant or the Complainant’s business. There is no evidence of critical or disparaging comments. The website itself does not display any commercial links and this supports the Respondent’s assertion that the disputed domain name reverts to a website that provides information relating only to vegetarianism and healthy living within the teachings of the Hindu religion. On the evidence produced by the parties, this appears to be a bona fide use of the disputed domain name under the Policy. The conduct of the Respondent in replying to Complainant’s allegations of trademark infringement also do not lead to any negative inferences against the Respondent, although the correspondence is somewhat unitellegible.
Accordingly, the Panel finds that the Complainant has not satisfied the requirement under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel will not make a finding with respect to bad faith in view of the findings with respect to rights and legitimate interests.
The Panel will not make a finding in favour of reverse domain name hijacking, as Complainant’s conduct does not warrant any such sanction in the circumstances. 7. Decision
For the foregoing reasons, the Complaint is denied.
Christopher J. Pibus
Sole Panelist
Date: May 7, 2017
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