The Complainant is Agrícola Industrial Lo Valledor AASA, Chile, represented by ObradorDigital, Chile.
The Respondent is Name Redacted1 .
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 10, 2021. On February 10, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 11, 2021, 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 February 15, 2021 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Center sent an email communication to the Complainant on February 15, 2021 indicating that although the language of the Complaint was Spanish, the registrar confirmed the language of the registration agreement to be English. The Complainant filed a translated Complaint on February 19, 2021.
The Center verified that the Complaint together with the translated 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 March 16, 2021. In accordance with the Rules, paragraph 5, the due date for Response was April 5, 2021. The Respondent sent an informal email communication on March 16, 2021 and March 30, 2021. On March 20, 2021, the Center received a communication claiming identity theft. Accordingly, the Center notified the Parties of the Commencement of the Panel Appointment on April 12, 2021.
The Center appointed Edoardo Fano as the sole panelist in this matter on April 16, 2021. 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.
Having reviewed the communication records in the case file provided by the Center, the Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), “to employ reasonably available means calculated to achieve actual notice to Respondent”. Therefore, the Panel shall issue its Decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of a formal response from the Respondent.
4. Factual BackgroundThe Complainant is Agrícola Industrial Lo Valledor AASA, a Chilean company operating in the field of pork and beef meat and owning several trademark registrations for COMAFRI, among which:
- Chilean Trademark Registration No. 1165145 for COMAFRI, registered on May 20, 2015.
The Complainant provided evidence in support of the above.
According to the WhoIs records, the disputed domain name was registered on March 27, 2018 and when the Complaint was filed the disputed domain name redirected to a website offering pork meat for sale and reproducing the logo of the Complainant as well as the company name Comafri S.A. The Complainant was also able to provide evidence that some clients recently received fraudulent emails, from email addresses associated with the disputed domain name (i.e., [...]@comafrisa.com), aimed to carry out phishing attacks.
5. Parties’ Contentions A. ComplainantThe Complainant states that the disputed domain name
Moreover, the Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since it has not been authorized by the Complainant to register the disputed domain name or to use its trademark within the disputed domain name.
The Complainant submits that the Respondent targeted the Complainant’s trademark at the time of registration of the disputed domain name and the Complainant contends that the use of the disputed domain name for fraudulent activities, by sending emails associated with the disputed domain name impersonating the Complainant, qualifies as bad faith registration and use.
B. RespondentThe Respondent has made no formal reply to the Complainant’s contentions. In reference to paragraphs 5(f) and 14 of the Rules, no exceptional circumstances explaining the absence of a reply to the Complainant’s contentions have been put forward or are apparent from the record.
A respondent is not obliged to actively participate in a proceeding under the Policy, but if it fails to do so, reasonable facts asserted by a complainant may be taken as true, and appropriate inferences, in accordance with paragraph 14(b) of the Rules, may be drawn (see, e.g., Reuters Limited v. Global Net 2000, Inc.,
WIPO Case No. D2000-0441; Microsoft Corporation v. Freak Films Oy,
WIPO Case No. D2003-0109; SSL INTERNATIONAL PLC v. MARK FREEMAN,
WIPO Case No. D2000-1080; ALTAVISTA COMPANY v. GRANDTOTAL FINANCES LIMITED et. al.,
WIPO Case No. D2000-0848; Confédération Nationale du Crédit Mutuel, Caisse Fédérale du Crédit Mutuel Nord Europe v. Marketing Total S.A.,
WIPO Case No. D2007-0288).
However, the Respondent submitted two informal email communications on March 16 and 30, 2021. In his email, the Respondent stated the following:
“We do not know what instituted this proceedings. comafrisa.cl is the property of comafri and we do not bear any claim over it. Whereas comafri.com has absolutely nothing to do with comafri. please tell me right now what can i do? thank you” (March 16, 2021).
“My name is [Name Redacted] and I still reiterate that the domain
On March 20, 2021, the Center received an email communication from a third party with the same name and postal address provided in the registration of the disputed domain name by the apparent Respondent, alleging that she has never bought the disputed domain name and that somebody had stolen her identity and used it to register the disputed domain name.
6. Discussion and Findings 6.1 Language of ProceedingsThe Complainant requested the language of the proceeding to be Spanish. According to paragraph 11(a) of the Rules, the Panel has decided that the language of the proceeding will be English, since the language of the Registration Agreement is English, the Complainant filed a translated Complaint in English, the content of the website at the disputed domain name is in English and the two informal email communications sent by the Respondent are in English.
6.2 Substantive IssuesParagraph 4(a) of the Policy lists three elements, which the Complainant must satisfy in order to succeed:
(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 SimilarThe Panel finds that the Complainant is the owner of the trademark COMAFRI both by registration and acquired reputation and that the disputed domain name
Regarding the addition of the acronym “sa”, standing for Sociedad Anómina (Limited Company in English), the Panel notes that it is now well established that the addition of terms or letters to a domain name does not prevent a finding of confusing similarity between the disputed domain name and the trademark (see, e.g., Aventis Pharma SA., Aventis Pharma Deutschland GmbH v. Jonathan Valicenti,
WIPO Case No. D2005-0037; Red Bull GmbH v. Chai Larbthanasub,
WIPO Case No. D2003-0709; America Online, Inc. v. Dolphin@Heart,
WIPO Case No. D2000-0713). The addition of the acronym “sa” does not therefore prevent the disputed domain name from being confusingly similar to the Complainant’s trademark.
It is also well accepted that a generic Top-Level Domain (“gTLD”), in this case “.com”, may be ignored when assessing the confusing similarity between a trademark and a domain name (see, e.g., VAT Holding AG v. Vat.com,
WIPO Case No. D2000-0607).
The Panel finds that the Complainant has therefore met its burden of proving that the disputed domain name is confusingly similar to the Complainant’s trademark, pursuant to the Policy, paragraph 4(a)(i).
B. Rights or Legitimate InterestsThe Respondent has failed to file a formal response in accordance with the Rules, paragraph 5.
The Complainant asserts that the Respondent has no rights or legitimate interests in respect of the disputed domain name since it has not been authorized by the Complainant to register the disputed domain name or to use its trademark within the disputed domain name. The Complainant states that the Respondent, using email addresses associated with the disputed domain name (i.e., [...]@comafrisa.com), is fraudulently passing itself off as the Complainant to approach its customers.
The Panel is of the opinion that the Respondent’s phishing activity cannot be considered as a use of the disputed domain name in connection with a bona fide offering of goods or services.
The prima facie case presented by the Complainant is enough to shift the burden of production to the Respondent to demonstrate that it has rights or legitimate interests in the disputed domain name. However, the Respondent has not presented any evidence of any rights or legitimate interests it may have in the disputed domain name, and the Panel is unable to establish any such rights or legitimate interests on the basis of the evidence in front of it.
Moreover, the Panel finds that the composition of the disputed domain name carries a risk of implied affiliation, also considering that an affiliated company of the Complainant is called Comafri S.A. See WIPO Overview 3.0, section 2.5.1.
Based on the facts of this case, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
The Panel therefore finds that paragraph 4(a)(ii) of the Policy has been satisfied.
C. Registered and Used in Bad FaithParagraph 4(b) of the Policy provides that “[…] for the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) circumstances indicating that [the Respondent has] registered or [has] acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trademark or service mark or to a competitor of the Complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) that [the Respondent has] registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that [the Respondent has] engaged in a pattern of such conduct; or
(iii) that [the Respondent has] registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the domain name, [the Respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the Respondent’s] website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the Respondent’s] website or location or of a product or service on [the Respondent’s] website or location”.
Regarding the registration in bad faith of the disputed domain name, the reputation of the Complainant’s trademark COMAFRI in the pork and beef meat field is clearly established and the Panel finds that the Respondent likely knew of the Complainant and deliberately registered the disputed domain name, also because it corresponds to the business name of the Complainant’s affiliated company Comafri S.A.
The Panel further notes that the disputed domain name is also used in bad faith in connection to phishing activity, as established by the Complainant by producing documents associated with the disputed domain name via which the Respondent is impersonating the Complainant’s affiliated company Comafri S.A., trying to establish business relationships with Complainant’s customers and reproducing the Complainant’s logo on the website at the disputed domain name.
The Panel finds that the Complainant has presented evidence to satisfy its burden of proof with respect to the issue of whether the Respondent has registered and is using the disputed domain name in bad faith.
The Panel therefore finds that paragraph 4(a)(iii) of the Policy has been satisfied.
7. DecisionFor 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
Edoardo Fano
Sole Panelist
Date: April 20, 2021
1 The Panel decided to redact the name of the named Respondent, adopting the criterion of the panel in Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted,
WIPO Case No. D2009-1788 (“The Panel has decided that no purpose is to be served by including the named Respondent in this decision, and has therefore redacted its name from the caption and body of this decision. The Panel has, however, attached as Annex 1 to this Decision an instruction to the Registrars regarding transfer of the disputed domain name that includes the name of the referenced co-Respondent, and has authorized the Center to transmit Annex 1 to the Registrars as part of the order in this proceeding. However, the Panel has further directed the Center, pursuant to paragraph 4(j) of the Policy and paragraph 16(b) of the Rules, that Annex 1 to this Decision shall not be published based on exceptional circumstances”).