The Complainant is Farmland Reserve UK Limited, United Kingdom (“UK”), represented by Reddie & Grose, UK.
The Respondent is Privacy Administrator, Anonymize, Inc., United States of America (“United States”). 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 5, 2021. On May 5, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On May 5, 2021, 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 May 20, 2021. In accordance with the Rules, paragraph 5, the due date for Response was June 9, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June 10, 2021. The Center appointed John Swinson as the sole panelist in this matter on June 18, 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. 4. Factual Background The Complainant, a charity registered in the UK, is an investment farm operation based just outside Cambridge, UK. The Complainant was incorporated in 1977 and changed its name to its present name in December 2011. The Complainant has been using the unregistered mark FARMLAND RESERVE for over ten years. The Respondent did not file a response. Little is known about the Respondent. The disputed domain name was registered on August 7, 2020. At the present time, the disputed domain name does not resolve to an active website. At one time, the disputed domain name resolved to a website that was designed to look like a website operated by the Complainant. 5. Parties’ Contentions A. Complainant The Complainant is an investment farm operation based in the UK. The Complainant specialises in generating income through investment farm operations and then donating to those in need and within the orbit of the Complainant’s charitable objects. The Complainant shares the same name as its sole shareholder, Farmland Reserve, Inc. The latter is a Utah non-profit corporation which was organized in 1997 and is affiliated with The Church of Jesus Christ of Latter-day Saints (“the Church”). Farmland Reserve, Inc. is active in holding investment farms and ranches for the Church. The words “Farmland Reserve” are used by the Church to identify its agricultural investments in the United States, the UK and other countries around the world. The Farmland Reserve UK Limited name was selected and is used by the Complainant in order to align the UK entity with the Church’s investment farm operations worldwide. As well as operating as a private limited company, the Complainant has been registered as a charity since March 14, 1978. The Complainant has operated throughout the UK for many years under the name Farmland Reserve UK Limited. It also uses the shortened version of this name, Farmland Reserve. As a result, the Complainant has acquired and developed considerable goodwill in respect of the names, such that these names denote the Complainant and none other. The Complainant provided evidence of its reputation and goodwill in the FARMLAND RESERVE trademark. A charity does not deny the Complainant from having protectable goodwill. Charities are entitled to the same protection as an ordinary business. This protectable goodwill gives the Complainant common law rights in both names as unregistered trademarks pursuant to the tort of passing off. Such rights are protected throughout the UK. The disputed domain name is identical to the distinctive part of the Complainant’s name and the shortened version that it uses. Internet users will assume, therefore, that the disputed domain name belongs to the Complainant. The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has not authorised the Respondent to use the disputed domain name, nor is the Complainant connected with the Respondent. The Respondent is not making a legitimate noncommercial fair use of the disputed domain name either. On the contrary, it is trying to create confusion and free ride off the goodwill in the Complainant’s name. The risk of damage to the Complainant is very real. Charities, particularly the Complainant which prides itself on its integrity and ability to provide for and help others, risk serious damage when their goodwill is wrongly tainted by the unlawful actions of others. In this case, the Respondent knew full well that the disputed domain name was identical to the distinctive part of the Complainant’s company name and the name of its registered charity. It is obvious that the disputed domain name has been registered and is being used by the Respondent as a deliberate impersonation of the Complainant’s identity. The disputed domain name was registered and is being used in bad faith. In particular, the Respondent registered and is using the disputed domain name for the purposes of impersonating the Complainant or appropriating its identity for its own benefit and detriment of the Complainant. Because of the extensive use of the Farmland Reserve UK Limited name on the website hosted under the disputed domain name, not least in the logo which is present in the top left-hand corner of all of the pages, visitors are likely to be misled into assuming that the website is operated or endorsed by the Complainant. The disputed domain name was registered and is being used for the purpose of disrupting the business of the Complainant by misleading internet users into believing that the website hosted under the Domain Name belongs to or is endorsed by the Complainant. If the services offered by the Respondent via the website were to fall short of the standard of those offered by the Complainant, this would stand to damage the Complainant’s reputation and the goodwill it has established in the Farmland Reserve UK Limited name and the shortened version FARMLAND RESERVE. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings To succeed, the Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied, namely: (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. The onus of proving these elements is on the Complainant even though the Respondent failed to submit a Response. Paragraph 15(a) of the Rules directs the Panel to decide the complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable. A. Identical or Confusingly Similar The Complainant does not rely upon registered trademark rights. Rather, the Compliant relies upon common law trademark rights as it is entitled to do. To establish common law trademark rights for purposes of the Policy, the Complainant must show that its trademark has become a distinctive identifier which others would associate with the Complainant’s charitable or farming services. See for example Regal Funds Management Pty Limited v. WhoisGuard Protected, WhoisGuard, Inc. / John Clerk,WIPO Case No. D2020-2773. The Complainant has provided evidence that the Complainant – active for many years – has longstanding rights in the trademark FARMLAND RESERVE. The Complainant provides evidence in the Complaint of its use of FARMLAND RESERVE as a trademark, including details of donations received, income generated through investment farm operations, and charitable work undertaken. The fact that the Respondent is targeting the Complainant’s trademark (as discussed below) supports the Complainant’s assertion that its trademark has achieved significance as a source identifier. The disputed domain name includes the Complainant’s trademark FARMLAND RESERVE in its entirety. The Panel accordingly concludes that the disputed domain name is confusingly similar to the Complainant’s FARMLAND trademark, disregarding the Top-Level Domain “.com”. The Complainant succeeds on the first element of the Policy in relation to the disputed domain name. B. Rights or Legitimate Interests The second requirement the Complainant must prove is that the Respondent has no rights or legitimate interests in the disputed domain name. Paragraph 4(c) of the Policy provides that the following circumstances can be situations in which the Respondent has rights or legitimate interests in a disputed domain name: (i) before any notice to [the Respondent] of the dispute, [the Respondent’s] use of, or demonstrable preparations to use, the [disputed] domain name or a name corresponding to the [disputed] domain name in connection with a bona fide offering of goods or services; or (ii) [the Respondent] (as an individual, business, or other organization) has been commonly known by the [disputed] domain name, even if [the Respondent] has acquired no trademark or service mark rights; or (iii) [the Respondent] is making a legitimate noncommercial or fair use of the [disputed] domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue. These are illustrative only and are not an exhaustive listing of the situations in which a respondent can show rights or legitimate interests in a domain name. The onus of proving this requirement, like each element, falls on the Complainant. UDRP Panels have recognized the difficulties inherent in proving a negative, however, especially in circumstances where much of the relevant information is in, or likely to be in, the possession of the respondent. Accordingly, it is sufficient for a complainant to raise a prima facie case against the respondent under this head and an evidential burden will shift to the respondent to rebut that prima facie case. None of the circumstances listed in paragraph 4(c) apply in the present circumstances. The Complainant has not authorized or permitted the Respondent to register or use the disputed domain name or to use the FARMLAND RESERVE trademark. The Complainant has rights in the FARMLAND RESERVE trademark which significantly precede the Respondent’s registration of the disputed domain name. There is no evidence that the Respondent is commonly known by the disputed domain name; to the contrary, the evidence points to the Respondent masquerading as the Complainant. The Complainant has established a prima facie case that the Respondent does not have any rights or legitimate interests in the disputed domain name and thereby the burden of production shifts to the Respondent to produce evidence demonstrating rights or legitimate interests in respect of the disputed domain name. The Panel finds that the Respondent has failed to produce any evidence to establish its rights or legitimate interests in the disputed domain name. Accordingly, the Panel finds the Respondent has no rights or any legitimate interests in the disputed domain name. The Complainant succeeds on the second element of the Policy in relation to the disputed domain name. C. Registered and Used in Bad Faith Paragraph 4(a)(iii) of the Policy provides that the Complainant must establish that the Respondent registered and subsequently used the disputed domain name in bad faith. In the present circumstances, the fact that the disputed domain name resolved to a website which impersonates the Complainant leads the Panel to conclude the registration and use of the disputed domain name are in bad faith. Visitors to the Respondent’s website are likely to be misled into assuming that the website is operated by or associated with the Complainant. The Respondent appears to be using the disputed domain name as part of a fraudulent scheme to acquire electronic goods without paying for them by pretending to be the Complainant. The Respondent’s conduct demonstrates the Respondent’s knowledge of the Complainant and its trademark. By using the disputed domain name as part of a scheme to impersonate the Complainant, demonstrates that the Respondent specifically knew of and targeted the Complainant to suggest to the public that the Respondent is in fact the Complainant, when it is not. Further, the Respondent failed to provide any accurate contact information for itself on the website at the disputed domain name or in the WhoIs record for the disputed domain name. The fact that the Respondent’s website (when it was operational) appears to be part of some form fraudulent scheme is manifestly evidence of bad faith. It is akin to a “phishing” website – see Australia and New Zealand Banking Group Limited v. Bashar Ltd,WIPO Case No. D2007-0031, and the cases therein referred to, for further analysis of why “phishing” activities amount to use in bad faith. This case was cited with approval in Regal Funds Management Pty Limited v. WhoisGuard Protected, WhoisGuard, Inc. / John Clerk,WIPO Case No. D2020-2773 which involved a website that was masquerading as the website of a financial advisory firm. Accordingly, the Panel finds that paragraph 4(b)(iv) of the Policy applies in the present case. The fact that the disputed domain name does not at the present time resolve to an active website does not prevent a finding of bad faith. The Complainant succeeds on the third element of the Policy in relation to the disputed domain name. 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 John Swinson
Sole Panelist
Date: June 26, 2021
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