Complainant is Raffinerie Tirlemontoise – Tiense Suikerraffinaderij, Belgium, represented by Gevers Legal NV, Belgium.
Respondent is Name Redacted.1 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 10, 2020. On July 13, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On July 13, 2020, 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 Complainant on July 22, 2020, providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on July 23, 2020. 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”). The Center appointed Stephanie G. Hartung as the sole panelist in this matter on August 27, 2020. 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 Complainant is a company organized under the laws of Belgium, which produces sugar for industry purposes as well as for every day consumption worldwide. Complainant has provided evidence that it is the registered owner of various trademarks relating to the term “Beneo”, inter alia, the following: - Word mark BENEO, European Union Intellectual Property Office (EUIPO), registration number: 016423006, registration date: August 4, 2017, status: active; - Word/device mark BENEO, World Intellectual Property Organization (WIPO), registration number: 1141196, registration date: September 12, 2012, status: active, with protection, inter alia, for the territory of the United States of America (“United States”). Respondent, according to the disclosed WhoIs information for the disputed domain name, is a resident of the United States who registered the disputed domain name on June 2, 2020. Complainant has evidenced that (1) at some point before the filing of the Complaint, the disputed domain name resolved to a typical pay-per-click (“PPC”) website with hyperlinks to a variety of third parties’ websites, and (2) an email was sent using the disputed domain name on June 20, 2020, which was a typical phishing email meant to induce a third party, namely one of Complainant’s customers, into making financial transactions obviously to Respondent’s advantage. On July 27, 2020, the Center received an email communication from a third party stating that it had received a notification about this proceeding, but that it was not the owner of the disputed domain name, which apparently had been registered under the third party’s name and contact details without authorization to do so. Complainant requests that the disputed domain name be transferred to Complainant. 5. Parties’ Contentions A. Complainant Complainant contends to be the market leader in sugar production in Belgium with roots going back to 1836 and also points to its German holding company Südzucker AG, claimed to be the world’s number one sugar producer and one of the leading food producers in Europe. Complainant submits that the disputed domain name is confusingly similar to its BENEO trademark as it incorporates the latter in its entirety, only preceded by the letter “i”. Moreover, Complainant asserts that Respondent has no rights or legitimate interests in respect of the disputed domain name since (1) Respondent apparently does not own any valid trademark rights in the term “ibeneo”, (2) Respondent is not commonly known by the disputed domain name, (3) using the disputed domain name to host a PPC website does not represent a bona fide offering where the displayed links compete with or capitalize on the reputation and goodwill of Complainant’s trademark or otherwise mislead Internet users, (4) the term “ibeneo” has no dictionary meaning in any language, and (5) the disputed domain name is being used to send fraudulent emails in which Complainant, and more specifically one of Complainant’s employees, is being impersonated. Finally, Complainant argues that Respondent registered and is using the disputed domain name in bad faith since (1) all of Complainant’s BENEO trademark registrations clearly predate the registration of the disputed domain name, (2) the current use of the disputed domain name to send fraudulent emails to Complainant’s customers constitutes proof of the fact that Respondent had knowledge of Complainant and its business activities when it registered the disputed domain name, and (3) the little time gap between the registration of the disputed domain name and the sending of the phishing email on the same day, June 2, 2020, clearly demonstrates that the disputed domain name was registered only for the purpose of using it for fraudulent actions. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, Complainant carries the burden of proving: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and Respondent's default in the case at hand does not automatically result in a decision in favor of Complainant, however, paragraph 5(f) of the Rules provides that if Respondent does not submit a response, in the absence of exceptional circumstances, the Panel shall decide the dispute solely based upon the Complaint. Further, according to paragraph 14(b) of the Rules, the Panel may draw such inferences from Respondent’s failure to submit a Response as it considers appropriate. A. Identical or Confusingly Similar The Panel concludes that the disputed domain name The disputed domain name incorporates Complainant’s BENEO trademark in its entirety. Numerous UDRP panels have recognized that incorporating a trademark in its entirety can be sufficient to establish that the disputed domain name is at least confusingly similar to a registered trademark (see e.g., PepsiCo, Inc. v. PEPSI, SRL (a/k/a P.E.P.S.I.) and EMS Computer Industry (a/k/a EMS),WIPO Case No. D2003-0696). Moreover, it has been held in many UDRP decisions and is widely agreed among UDRP panels (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8), that the addition of another term (whether, e.g., descriptive or meaningless) to a trademark in a domain name would not prevent a finding of confusing similarity under the first element of the UDRP. Accordingly, the mere addition of the letter “i” does not dispel the confusing similarity arising from the incorporation of Complainant’s BENEO trademark in the disputed domain name. Therefore, Complainant has established the first element under the Policy set forth by paragraph 4(a)(i). B. Rights or Legitimate Interests The Panel is further convinced on the basis of Complainant’s undisputed contentions that Respondent has not made use of the disputed domain name in connection with a bona fide offering of goods or services, nor has Respondent been commonly known by the disputed domain name, nor can it be found that Respondent has made a legitimate noncommercial or fair use thereof without intent for commercial gain. Respondent obviously has not been authorized to use Complainant’s BENEO trademark, either as a domain name or in any other way. Also, there is no reason to believe that Respondent’s name somehow corresponds with the disputed domain name and Respondent does not appear to have any trademark rights associated with the terms “Beneo” or “ibeneo” (which apparently have no dictionary meaning) on its own. Finally, Respondent sent at least one fraudulent email under the disputed domain name, obviously in an attempt to induce a third party, namely one of Complainant’s customers, into making financial transactions to Respondent’s commercial gain and illegal advantage; such use of the disputed domain name neither qualifies as bona fide nor as legitimate noncommercial or fair within the meaning of the Policy. Accordingly, Complainant has established a prima facie case that Respondent has no rights or legitimate interests in respect of the disputed domain name. Now, the burden of production shifts to Respondent to come forward with appropriate evidence demonstrating to the contrary (see WIPO Overview 3.0, section 2.1). Given that Respondent has defaulted, it has not met that burden. Therefore, the Panel finds that Complainant has also satisfied paragraph 4(a)(ii) and, thus, the second element of the Policy. C. Registered and Used in Bad Faith The Panel finally holds that the disputed domain name was registered and is being used by Respondent in bad faith. The circumstances to this case leave no doubt that Respondent was fully aware of Complainant’s rights in the BENEO trademark (notwithstanding its claimed worldwide recognition) when registering the disputed domain name and that the latter clearly is directed thereto. Moreover, using the disputed domain name for phishing activities by sending fraudulent emails in order to induce a third party, namely one of Complainant’s customers into making financial transactions to Respondent’s illegal advantage, is a clear indication that Respondent intentionally attempted to attract, for commercial gain, Internet users to its own email communication by creating a likelihood of confusion with Complainant’s BENEO trademark as to the source, sponsorship, affiliation or endorsement of Respondent’s email. Such circumstances are evidence of registration and use of the disputed domain name in bad faith within the larger meaning of paragraph 4(b)(iv) of the Policy. This bad faith finding is also supported and rounded up by the fact that Respondent obviously has undertaken an identity theft when it registered the disputed domain name, which may not be classified other than an action of bad faith. Therefore, the Panel holds that Complainant has also satisfied the third element under the Policy as set forth by paragraph 4(a)(iii). 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 Stephanie G. Hartung 1 Respondent appears to have used the name and contact details of a third party when it registered the disputed domain name. In light of the potential identity theft, the Panel has redacted Respondent’s name from this Decision. However, the Panel has attached as Annex 1 to this Decision an instruction to the Registrar regarding transfer of the disputed domain name, which includes the name of Respondent. The Panel has authorized the Center to transmit Annex 1 to the Registrar as part of the order in this proceeding, and has indicated that Annex 1 to this Decision shall not be published due to the exceptional circumstances of this case. See ASOS plc. v. Name Redacted,WIPO Case No. D2017-1520; Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted,WIPO Case No. D2009-1788.
In accordance with the Rules, paragraphs 2 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on July 24, 2020. In accordance with the Rules, paragraph 5, the due date for Response was August 13, 2020. The Center received an informal email communication from a third party on July 27, 2020. Respondent did not submit any response. The Center notified the Parties on August 14, 2020, that it would proceed to panel appointment.
(ii) that Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the disputed domain name has been registered and is being used in bad faith.
Sole Panelist
Date: September 10, 2020
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