The Complainant is Seara Alimentos Ltda of São Paulo, Brazil, represented by SP Law (Spiewok Carneiro), Brazil.
The Respondent is PrivacyDotLink ID#3172966 of Grand Cayman, Cayman Islands, Overseas Territory of the United Kingdom of Great Britain and Northern Ireland ("United Kingdom") / Manda Craig of Maryland, Baltimore, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with Uniregistrar Corp (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on March 1, 2018. On March 2, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On March 5, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on March 6, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on March 6, 2018. A further amendment to the Complaint was requested and filed on March 12, 2018.
The Center verified that the Complaint together with the amended Complaint and the amendment to 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 15, 2018. In accordance with the Rules, paragraph 5, the due date for Response was April 4, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 6, 2018.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on April 13, 2018. 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 is one of the Brazilian leaders in the food industry. The company was founded in 1956, and it is worldwide known in its field of activity since the beginning of exportation of its products throughout the world. The Complainant has more than 700 clients in more than 110 countries, 5 international branches in its main markets and international accreditations.
The Complainant is the owner of multiple trademark registrations containing the SEARA mark, mainly in classes of the food segment. The first trademark containing the word SEARA was filed before the Brazilian Patent and Trademark Office on May 1 1958 and registered July 12, 1962. The Complainant is also the owner of trademark registrations in several other countries, such as Ecuador, Italy, Denmark, France, India, Morocco, Peru, the Russian Federation and the United Kingdom.
According to the Registrar, the Respondent registered the Domain Name on May 28, 2017. The Complainant argues that on this date, the Domain Name was transferred to the current registrar, and the Respondent in fact registered the Domain Name on March 10, 2016. The Domain Name resolves, at the time of the drafting this decision, to a Registrar website selling domain names. 5. Parties' Contentions A. Complainant
The Complainant provides trademark registrations, and argues that the Domain Name reproduces the Complainant's trademark. The Complainant argues that the additional "international" used in the Domain Name, does not prevent a finding of confusing similarity. The addition merely points to the fact that the Complainant is an international company. Hence, the Domain Name is confusingly similar to the Complainant's trademark.
The Complainant argues that the Respondent is not affiliated or related to the Complainant in any way, or licensed or otherwise authorized to use the Complainant's trademark. The Respondent has no prior rights or legitimate interests in the Domain Name. The Respondent is not making a fair or legitimate noncommercial use of the Domain Name.
As to bad faith, the Complainant argues that given the notoriety of the Complainant and its trademark, it is implausible that the Respondent was unaware of the Complainant when he registered the Domain Name. According to a print out of the website to which the Domain Name resolved in November 2016, the Respondent listed a contact address in Brazil, the same country as the Complainant, and business interest in food supply. By using the Domain Name this way, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with the Complainant's mark as to the source, sponsorship and affiliation. The Complainant also argues that the Domain Name was registered with the purpose of taking advantage of the trademark SEARA belonging to the Complainant, disrupting the business of Complainant, preventing the Complainant from using the Domain Name, and ultimately intending to sell the Domain Name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Complainant has established that it has rights in the trademark SEARA.
The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name is confusingly similar to the Complainant's trademark. The addition of "international" does not provide sufficient distinction from the Complainant's mark. For the purpose of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the generic Top-Level Domain ".com", see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), section 1.
The Panel finds that the Domain Name is confusingly similar to trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register a domain name containing its trademarks or otherwise make use of its marks. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way. It is unlikely that the Respondent independently and by chance chose to register the Domain Name without any knowledge of the Complainant and its trademark. As documented by the Complainant, the Domain Name has not been used to bona fide offering nor a legitimate noncommercial or fair use within the meaning of the Policy.
The Panel finds that the Complainant has made out an unrebutted prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
Based on the case file, it is likely that the Respondent was aware of the Complainant's trademark and its business when the Respondent registered the Domain Name.
The Panel finds that the use of the Domain Name as evidenced in the Complaint (including the printout from November 2016) supports a finding of bad faith. And even if the printout of November 2016 were to relate to a former registrant, "passive holding" or non-use of a domain name supports a finding of bad faith, see WIPO Overview 3.0, section 3.3. The Complainant's trademark has a certain degree of distinctiveness and reputation in its line of business. The Respondent has failed to submit a response or to provide any evidence of actual or contemplated good-faith use. The Respondent has concealed his identity, and it is not likely that the Respondent could have provided any evidence of good faith use, if the Respondent had replied to the Complaint.
The Panel concludes that it is more likely than not that the Respondent has registered the Domain Name to take advantage of the Complainant's trademark SEARA, either to attract Internet users to his website by creating a likelihood of confusion with the Complainant's mark, or to sell the Domain Name for valuable consideration in excess of documented out-of-pocket costs.
For the reasons set out above, the Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of the paragraph 4(a)(iii) of the Policy. 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 Domain Name, , be transferred to the Complainant.
Mathias Lilleengen
Sole Panelist
Date: April 17, 2018
Full & Egal Universal Law Academy