The Complainant is Minerva S.A. of Sao Paulo, Brazil, represented by Opice Blum, Brazil.
The Respondent is Noah of London, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name is registered with PDR Ltd. d/b/a PublicDomainR (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 26, 2018. On September 27, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 28, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on October 1, 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 October 5, 2018.
The Center verified that the Complaint together with the amended 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 October 11, 2018. In accordance with the Rules, paragraph 5, the due date for Response was October 31, 2018. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 1, 2018.
The Center appointed Christopher J. Pibus as the sole panelist in this matter on November 8, 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 a Brazilian agribusiness company, operating chiefly in the beef industry, where it acts as an exporter of meat products to more than 100 countries in the world. The Complainant owns a Brazilian trademark registration No. 826080120 issued on December 5, 2017 for the mark MINERVA in association with meat, fish, poultry and game, and other food products.
The Complainant uses the trade name Minerva Foods and has owned the domain name since June 2012, operating a website in association with its food supply business.
The Respondent registered the disputed domain name on June 8, 2018. The disputed domain name has been used in connection with a fraudulent email scheme. 5. Parties’ Contentions A. Complainant
The Complainant alleges that the disputed domain name wholly incorporates the Complainant’s registered trademark for MINERVA, except for the additional letter “i”, thereby misspelling the registered trademark in order to attract unsuspecting Internet users. Accordingly, the disputed domain name is confusingly similar to the Complainant’s trademark.
The Complainant contends that the Respondent is not known by the name “Minerva”, and has not been authorized by the Complainant to use the trademark MINERVA. The Respondent has not used the disputed domain name in association with a bona fide offering of goods and services. The disputed domain name has been used to commit acts of fraud targeting consumers of the Complainant.
The Complainant further submits that the Respondent has registered and used the disputed domain name in bad faith. The Respondent must have been aware of the Complainant and the Complainant’s trademark rights in the MINERVA mark and the Complainant’s domain name when it registered the disputed domain name. The Respondent has not used the disputed domain name in association with a bona fide offering of goods and services, but has committed acts of fraud targeting the consumers of the Complainant. The Respondent by registering and using this confusingly similar disputed domain name has interfered with the Complainant’s business, and caused damage to the Complainant’s reputation, by pretending to take orders from unsuspecting consumers and demanding payment for those orders which are never filled. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 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 recognizable trademark rights in the trademark MINERVA by virtue of its trademark registration listed in paragraph 4 of this Decision.
The Panel finds that the disputed domain name is confusingly similar to the Complainant’s registered trademark MINERVA, as the disputed domain name replicates the Complainant’s registered trademark except for the additional letter “i”. The Panel further notes that the Complainant’s trade name and domain name have been replicated in its entirety except for the additional letter “i”, a clear example of typosquatting.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Useful commentary relating to the burden of proof for rights or legitimate interests can be found at the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1:
“While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element”.
Based on the evidence filed in this proceeding, the Panel finds that the Complainant has made out a prima facie case with respect to lack of rights and legitimate interests. The Complainant owns rights in the registered mark MINERVA as noted in paragraph 4 of this Decision. The Complainant has used its trade name and the domain name with respect to its food supply business for over ten years, and the Respondent has deliberately reproduced the registered mark MINERVA and the Complainant’s domain name except for the additional letter “i” in the disputed domain name. The Respondent was not authorized or licensed to use the Complainant’s trademark, and the Respondent is not commonly known by the mark MINERVA.
The Complainant’s evidence also shows fraudulent activity carried on by the Respondent through emails which appear to originate from the Complainant, but which actually come an account which uses the deceptive address ([...]@). This scheme targeting a consumer of the Complainant is clear evidence of a lack of bona fide use of the disputed domain name by the Respondent.
In this situation, the burden then shifts to the Respondent to bring forward evidence of rights and legitimate interests. The Respondent did not respond to the Complaint.
Accordingly, the Panel finds that the Complainant is deemed to have satisfied the requirements under paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
As set out above, the Panel is prepared to find that the Respondent was likely aware of the Complainant’s trademark rights in the MINERVA mark when it registered the disputed domain name . This conclusion is supported by the fact that the Respondent is using the disputed domain name in association with an email extension that targets consumers of the Complainant for monetary gain through fraudulent activity. This conduct reflects a clear intention to interfere with the Complainant’s business in a flagrant manner which is abusive under the Policy. The Respondent has failed to provide any evidence to explain his conduct.
The Panel is prepared to accept the claims made by the Complainant, and finds that the Respondent registered and has used the disputed domain name in bad faith.
The Complainant has therefore satisfied the requirements under 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 disputed domain name be transferred to the Complainant.
Christopher J. Pibus
Sole Panelist
Date: November 14, 2018
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