The Complainant is Syngenta Participations AG of Basel, Switzerland, internally represented.
The Respondent is Jon Hanna, Aljt of Denver, Colorado, United States of America (the “United States”). 2. The Domain Name and Registrar
The disputed domain name is registered with 1&1 Internet AG (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 27, 2017. On March 27, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 28, 2107, 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 30, 2017. In accordance with the Rules, paragraph 5, the due date for Response was April 19, 2017. On April 6 and 15, 2017, the Center received email communications from the Respondent. The Respondent did not however submit any formal response. Accordingly, the Center notified the parties about the commencement of panel appointment process on April 21, 2017.
The Center appointed Jane Lambert as the sole panelist in this matter on May 5, 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 and its subsidiaries run a multinational agribusiness with over 28,000 employees in some 90 countries. Products include agrochemicals for crop protection and vegetable and flower seeds which are marketed under the SYNGENTA brand.
That brand has been registered as an international trade mark for a wide range of goods and services in classes 1, 2, 5, 7, 8, 9, 10, 16, 29, 30, 31, 32, 35, 36, 41, and 42 with designations in the United Kingdom of Great Britain and Northern Ireland, France, Germany, China, Russian Federation and many other countries with effect from March 8, 2000 under registration number 732663. The word “syngenta” has been registered as a national mark in other countries including the United States where it is registered with the United States Patent and Trademark Office under registration number 3036058.
The Complainant has registered and has used domain names containing the word “syngenta” as generic and country code domain names including , , , , , , and .
The disputed domain name was registered on March 14, 2017. The disputed domain name does not resolve to an active website. 5. Parties’ Contentions A. Complainant
The Complainant requests the transfer of the disputed domain name on the following grounds:
- The disputed domain name is confusingly similar to a trade mark in which the Complainant has rights;
- The Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- The disputed domain name has been registered and is being used in bad faith.
The Complainant observes that the disputed domain name incorporates its registered trade mark SYNGENTA in its entirety which it combines with the word “qroup”. “Qroup” is not, of course, an English word but it looks very like “group” when spelt in lower case as it would appear in a URL.
On the day it was registered, the disputed domain name was used as an address for bogus emails purportedly sent by the Complainant’s Chief Executive Officer to staff working in its finance department requiring a payment to be made that day at the request of the Chief Financial Officer.
The Complainant observes that this is a classic phishing exercise and complains of similar domain name registrations by the Registrar which have also been used for similar purposes. In each case, the application for registration was made in the name of an individual living in the United States though the name differed in each case. However, the wording of the emails in each of those cases was very similar suggesting that the person or persons who sent the bogus email in this case was or were the same as the person or persons who sent similar emails in the other cases. The Complainant contends that the Respondent does not have any rights or legitimate interests in the disputed domain name.
The Complainant relies on B & H Foto & Electronics Corp. v. Whois Privacy Protection Service, Inc. / Jackie Upton,WIPO Case No. D2010-0841 and Tetra Laval Holdings & Finance S.A. v. Harry Bradley, Harry B. Holdings Ltd.,WIPO Case No. D2016-0616 in support of its contention that sending fraudulent emails from a domain name that is confusingly similar to the Complainant’s trade mark or service mark is sufficient evidence of registration and use in bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
The agreement to register the disputed domain name incorporated paragraph 4(a) of the Policy:
“a. Applicable Disputes. You are required to submit to a mandatory administrative proceeding in the event that a third party (a ‘complainant’) asserts to the applicable Provider, in compliance with the Rules of Procedure, that
(i) your domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) you have no rights or legitimate interests in respect of the domain name; and
(iii) your domain name has been registered and is being used in bad faith.
In the administrative proceeding, the complainant must prove that each of these three elements are present.” A. Identical or Confusingly Similar
The Panel finds that the first element is present.
As the Complainant has observed, the disputed domain name combines the Complainant’s registered trade mark with the word “qroup” to form a domain name that looks like “syngentagroup” when read quickly. The Complainant and its subsidiary companies do form a group and the obvious inference to be drawn from the combination of those elements is that the Respondent intended to trick email recipients into carrying out his bidding by leading him or her to believe that the email was an instruction from his or her superior. The requirement of confusing similarity is met. B. Rights or Legitimate Interests
The Panel also finds this second element to be present.
Paragraph 4(c) of the Policy lists a number of circumstances that could demonstrate that the Respondent has a right or legitimate interest in the disputed domain name. There is no evidence that any of those circumstances or any other circumstance of a similar nature applies to this case. Had there been such evidence, the Respondent had an opportunity to adduce it.
There are two other reasons to conclude that the Respondent has no rights or legitimate interests in the disputed domain name. The first is that the use to which the disputed domain name has been put is known and that is obviously not legitimate. The second reason is that the SYNGENTA brand is registered as a trade mark throughout the world. Consequently, its use without the Complainant’s consent may be actionable either as an infringement of the Complainant’s trade mark, an act of passing off or both. C. Registered and Used in Bad Faith
The Panel finds that the third element is also present.
Paragraph 4(b) of the Policy lists a number of circumstances, which, if found by the Panel to be present, shall be evidence of the registration and use of the disputed domain name in bad faith. One of those circumstances is set out in paragraph(4)(b)(iv):
“by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your web site or location or of a product or service on your web site or location.”
The Panel has already found the disputed domain name to be confusingly similar to the Complainant’s trade mark. Recipients of the bogus emails are Internet users and the address from which those emails were sent and to which replies were requested was an on-line location.
The email requested an acknowledgement which would have disclosed or confirmed the recipient’s email address. The email did not actually mention the name or address of a payee or the amount of a payment (though that might have come later) but the mere disclosure or confirmation of the recipient’s email address would have been enough for the sender of that email to derive commercial gain as he could have used the disclosed or confirmed email address for spamming or sold it to a spammer. Under the circumstances it appears obvious that the intent of the Respondent was to obtain some commercial benefit.
The Panel concludes that all the elements of paragraph 4(b)(iv) of the Policy are present and that the Respondent’s email constitutes evidence of registration and use of the disputed domain name in bad faith. Such evidence may not be conclusive but the Respondent had an opportunity to rebut it and failed to do so. In the absence of any other evidence, the Panel finds that the disputed domain name was registered and used in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Jane Lambert
Sole Panelist
Date: May 16, 2017
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