The Complainant is Greenyard NV, Belgium, represented by Gevers Legal NV, Belgium.
The Respondent is Withheld for Privacy Purposes, Privacy Service Provided by Withheld for Privacy ehf, Iceland / Franck Gauthier, France.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 20, 2021. On October 20, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 20, 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 October 21, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed a first amended Complaint on October 25, 2021 and a second amended Complaint on October 26, 2021.
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 26, 2021. In accordance with the Rules, paragraph 5, the due date for Response was November 15, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 16, 2021.
The Center appointed Tobias Zuberbühler as the sole panelist in this matter on November 24, 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 BackgroundThe Complainant is a global market leader of fresh, frozen and prepared fruit and vegetables, flowers and plants, employing over 9’000 people in 25 countries across the world.
The Complainant owns trademark registrations in various jurisdictions, including the International trademark GREENYARD (Reg. No. 1172478, registered on July 10, 2013), the International trademark GREENYARD (Reg. No. 1534951, registered on March 18, 2020) and the Benelux trademark GREENYARD (Reg. No. 1407504, registered on March 3, 2020).
The Complainant further holds the domain name
The disputed domain name was registered on September 12, 2021 and resolves to a website with pay-per-click content. Fraudulent emails regarding non-existent business collaborations allegedly originating from the Complainant were sent from email addresses incorporating the disputed domain name.
5. Parties’ Contentions A. ComplainantThe Complainant alleges that it has satisfied all elements of the Policy, paragraph 4.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsOn the basis of the facts and evidence introduced by the Complainant, and with regard to paragraphs 4(a), (b) and (c) of the Policy, the Panel concludes as follows:
A. Identical or Confusingly SimilarThe Complainant has submitted sufficient evidence to demonstrate its registered rights in the GREENYARD trademark.
The GREENYARD trademark is wholly reproduced in the disputed domain name.
A domain name is “identical or confusingly similar” to a trademark for the purposes of the Policy when the domain name includes the trademark, or a confusingly similar approximation, regardless of other terms in the domain name (Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale, WIPO Case No. D2000-0662). As stated in WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.8, “[w]here the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element. The nature of such additional term(s) may however bear on assessment of the second and third elements”. Hence, the Panel holds that the addition of the term “-group” to the Complainant’s GREENYARD trademark does not prevent a finding of confusing similarity between the disputed domain name and the Complainant’s trademark.
The Complainant has thus fulfilled the requirements of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate InterestsThere are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the disputed domain name. The Complainant contends that the Respondent is neither affiliated with the Complainant nor making any bona fide use of the disputed domain name.
The Complainant has credibly alleged that the Respondent uses the disputed domain name and an email address incorporating the disputed domain name to conduct a fraud scheme while taking advantage of the Complainant’s trademark notoriety. This cannot be considered as a bona fide offering of goods or services or a noncommercial use.
Furthermore, the composition of the disputed domain name, wholly incorporating the Complainant’s trademark and the term “-group”, cannot constitute fair use in these circumstances as it effectively impersonates or suggests sponsorship or endorsement by the Complainant. See WIPO Overview 3.0, section 2.5.1.
Furthermore, the Complainant has provided evidence that the disputed domain name is being used in connection with a fraudulent phishing scheme via emails; such use can never confer rights or legitimate interests to a respondent. See WIPO Overview 3.0, section 2.13.
Based on the Complainant’s credible contentions, the Panel finds that the Complainant, having made out a prima facie case which remains unrebutted by the Respondent, has fulfilled the requirements of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithUnder the circumstances of this case, including the composition of the disputed domain name and reputation of the Complainant’s trademark, it can be inferred that the Respondent was aware of the Complainant’s trademark when registering the disputed domain name.
The Panel finds that the reproduction of the Complainant’s trademark along with the term “-group” creates a likelihood of confusion between the Complainant’s trademark and the disputed domain name.
The evidence and allegations submitted by the Complainant support a finding that the Respondent was engaged in an attempt to pass himself off as the Complainant by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of his website and to attract Internet users to his website for his own commercial gain. The Respondent therefore used the disputed domain name in bad faith (see Claudie Pierlot v. Yinglong Ma,WIPO Case No. D2018-2466).
Accordingly, the Complainant has also fulfilled paragraph 4(a)(iii) of the Policy.
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
Tobias Zuberbühler
Sole Panelist
Date: December 3, 2021