The Complainant is Syngenta Participations AG of Basel, Switzerland, internally represented.
The Respondent is Guillaume Texier, Gobain ltd of Ray, Georgia, United States of America ("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 June 12, 2017. On the same date, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 13, 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 June 21, 2017. In accordance with the Rules, paragraph 5, the due date for Response was July 11, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on July 12, 2017.
The Center appointed James Bridgeman as the sole panelist in this matter on July 17, 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.
On July 25, 2017, pursuant to Paragraph 12 of the Rules, the Panel issued a Procedural Order requesting that the Complainant provide a copy of the email of June 5, 2017 referred to in the Complaint on or before July 28, 2017 and allowing the Respondent until August 3, 2017 to comment on any submission to be received by the Complainant.
On July 25, 2017, the Complainant provided a copy of said email. The Respondent did not file any submissions by the deadline and the Panel proceeded to make the decision based on the submissions and evidence received. 4. Factual Background
The Complainant is a globally known company with more than 28,000 employees in 90 countries providing goods and services in connection with agriculture including agrochemicals, vegetable and flower seeds.
The Complainant is the owner of the following trademark registrations:
International trademark SYNGENTA No. 732663 in classes 1, 2, 5, 7, 8, 9, 10, 16, 29, 30, 31, 32, 35, 36, 41, and 42, as of March 8, 2000 with designations in jurisdictions including France, Germany, China, the Russian Federation, and Viet Nam among many others.
United States trademark SYNGENTA, registration number 3,036,058, registered on December 27, 2005 for goods and services in international classes, 1, 2, 5, 7, 8, 9, 10, 16, 29, 30, 31, 32, 35, 36, 41 and 42.
The Complainant also owns a number of domain names incorporating the SYGENTA mark including , , , , , , , and .
There is no information available about the Respondent except for that provided in the Complaint and the registrar's WhoIs.
The disputed domain name was registered on June 5, 2017. The disputed domain name was used on June 5, 2017 as an email address to send a request to an employee of the Complainant requesting urgent payment of monies claimed to be due on a false invoice. Currently, the disputed domain name does not resolve to an active website. 5. Parties' Contentions A. Complainant
The Complainant relies on its abovementioned trademark registrations and the rights that it claims to have acquired at common law by extensive use of the SYNGENTA mark in relation to its agricultural science business since 1999.
The Complainant alleges that the disputed domain name , is confusingly similar to the Complainant's SYNGENTA mark because it consists of the Complainant's mark in its entirety in combination with the suffix "group" and the generic Top-Level Domain ("gTLD") ".com". The Complainant further submits that the suffix "group" is a common descriptive word often used to indicate a type of business organization and argues that the combination of the Complainant's SYNGENTA mark with the suffix "group", is clearly intended to confuse the public into thinking that the disputed domain name is owned and operated by the Complainant.
The Complainant submits that there have been numerous complaints decided under the Policy involving confusingly similar domain names incorporating the term "group" as a suffix or prefix to a well-known trademark such as in Confédération Nationale du Crédit Mutuel v. Antony Tep,WIPO Case No. D2016-0651, , and those utilizing the generic term "group" with a well-known trademark in an attempt to create confusion specifically for illicit financial gain such as in ABB Asea Brown Boveri Ltd. v. Toni Woods,WIPO Case No. D2014-1543, .
The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant asserts that the Respondent has no affiliation with the Complainant nor was the Respondent authorized to use Complainant's registered trademark.
The Complainant states that the disputed domain name does not resolve to an active website, but was used to send fraudulent emails in a phishing scheme targeting an employee of the Complainant in an attempt to arrange payment for a non-existent invoice.
The Complainant states that the disputed domain name was registered and is being used in bad faith alleging that on June 5, 2017, the day on which the disputed domain name was registered, an email was sent from a address to an employee of the Complainant, inquiring into the possibility of urgently making a payment on a false invoice that day. In an attempt to mislead the recipient into thinking that the email was legitimate, the email sender's address used the name of the Complainant's Chief Financial Officer.
The Complainant states that it has seen this pattern before in the case of Syngenta Participations AG v. Jon Hanna, Aljt,WIPO Case No. D2017-0616, whereby the letter "q" was substituted for the letter "g" in the suffix group, and was registered in order to phish for sensitive financial information and has submitted a copy of an email sent to the Complainant from a address on March 14, 2017.
The Complainant submits that the current situation is almost identical to the case involving with the exception that the registrant has changed. Although the listed registrants are always different individuals with a United States address, the text of the phishing emails is very similar, leading the Complainant to suspect the possibility that one individual or group may be behind the phishing activity.
The Complainant submits that this is a classic case of phishing whereby a confusing similar domain name is registered in order to send fraudulent emails in the hopes of procuring information for financial gain and submits that as found in the cases of 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, sending fraudulent emails from a confusingly similar domain name as the Complainant's domain name is sufficient evidence of bad faith. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy requires the Complainant to establish that:
i. the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
ii. the Respondent has no rights or legitimate interests 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 Complainant has furnished convincing evidence that it is the owner of the SYNGENTA mark in which it has rights acquired through its abovementioned trademark registrations.
The disputed domain name consists of the Complainant's distinctive trademark in its entirety in combination with the suffix "group" and the gTLD ".com".
This Panel finds that the Complainant's SYNGENTA trademark is the dominant and the only distinctive element in the disputed domain name and the second element "group" implies a reference to a corporate grouping which does not distinguish the disputed domain name from the mark in any way.
This Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark and the Complainant has therefore satisfied the first element of the test in paragraph 4 of the Policy. B. Rights or Legitimate Interests
The Complainant has made out a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name. A registrant cannot acquire rights or legitimate interests by the use of a domain name as an email address from which to send phishing emails.
It is well established that when a complainant makes out a prima facie case that a respondent has no rights or legitimate interests in a domain name the burden of production shifts to the respondent.
In the present case the Respondent has not filed any Response or made any submission, notwithstanding that there was an additional opportunity afforded by the Procedural Order of July 25, 2017. The Respondent has therefore failed to discharge the burden of production.
In the circumstances the Complainant has satisfied the second element of the test in paragraph 4 of the Policy. C. Registered and Used in Bad Faith
The Complainant has provided evidence that the disputed domain name was used for phishing activity commenced on the very day on which it was registered.
On the uncontroverted evidence before this Panel, the disputed domain name was used on June 5, 2017 as an email address to send a request to an employee of the Complainant requesting urgent payment of monies claimed to be due on a false invoice. In an attempt to mislead the recipient into thinking that the email was legitimate, the sender of the email used the name of the Complainant's Chief Financial Officer.
This Panel finds that on the balance of probabilities the disputed domain name was registered and is being used in bad faith for the purposes of unlawful phishing activity.
The Complainant has therefore also succeeded in satisfying the third and final element of the test in paragraph 4 of the Policy and is entitled to the relief sought. 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.
James Bridgeman
Sole Panelist
Date: August 4, 2017
Full & Egal Universal Law Academy