ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION JBS S.A. v. Fab Bit, Copera Case No. D2023-0681 1. The Parties The Complainant is JBS S.A., Brazil, internally represented. The Respondent is Fab Bit, Copera, Spain. 2. The Domain Name and Registrar The disputed domain name is registered with Hosting Concepts B.V. d/b/a Registrar.eu. (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 14, 2023. On February 15, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 16, 2023, 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 (Unknown Registrant) and contact information in the Complaint. The Center sent an email communication to the Complainant on February 22, 2023, 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 amendment to the Complaint on the same day. The Center verified that the Complaint, together with the amendment to 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 February 28, 2023. In accordance with the Rules, paragraph 5, the due date for Response was March 20, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 27, 2023. The Center appointed Miguel B. O'Farrell as the sole panelist in this matter on April 5, 2023. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of page 2 Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7. 4. Factual Background The Complainant is a multinational Brazilian company, founded in 1953 in Goiás, Brazil and is one of the world leaders in the food industry that also operates in other segments such as leather, biodiesel, collagen, metal packaging and cleaning products. The Complainant owns Seara Alimentos Ltda, in turn, owner of several registrations for the trademark SEARA in many jurisdictions, including the following: - Brazilian Trademark Registration No. 823225356 SEARA, filed on October 10, 2000, and registered on April 22, 2008 in class 29, and - Argentine Trademark Registration No. 3311762 SEARA, filed on February 26, 2021 an registered on August 3, 2022, in class 29. The disputed domain name was registered on March 19, 2022 and resolves to a webpage that offers the same products as those offered by the Complainant. 5. Parties' Contentions A. Complainant The Complainant, in essence, claims that the disputed domain name is confusingly similar with the trademark SEARA in which the Complainant has rights and that the Respondent has no rights or legitimate interests in the disputed domain name, which was registered and is being used in bad faith. More specifically, the Complainant has no relationship or affiliation with the Respondent. The Complainant has not authorized or licensed the use of the trademark SEARA to the Respondent or to register a domain name containing it. The Respondent is fraudulently and intentionally attracting customers for commercial gain, by creating confusion with the Complainant's mark, using the disputed domain name as an official Complainant's contact means. Finally, the Complainant requests the Panel to issue a decision ordering that the disputed domain name be transferred to the Complainant. B. Respondent The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the disputed domain name, the Complainants must prove each of the following, namely that: (i) he disputed domain name is identical or confusingly similar with a trademark or service mark in which the Complainants have rights; and (ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and page 3 (iii) the disputed domain name was registered and is being used in bad faith. A. Identical or Confusingly Similar As set forth in section 1.7 of WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition ("WIPO Overview 3.0"), the standing test for confusing similarity involves a reasoned but relatively straightforward comparison between the trademark and the disputed domain name to determine whether the disputed domain name is confusingly similar with the trademark. The test involves a side-by-side comparison of the disputed domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name. The Panel considers that the disputed domain name is confusingly similar with the Complainant's SEARA trademark. The disputed domain name incorporates the Complainant's trademark SEARA in its entirety. The addition of "limentosltda-br" does not prevent a finding of confusing similarity. See sections 1.8 and 1.9 of the WIPO Overview 3.0. The ".com" generic Top-Level Domain ("gTLD") is viewed as a standard registration requirement and is generally disregarded under the first element confusing similarity test, as set forth in section 1.11 of the WIPO Overview 3.0. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the trademark SEARA in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy are fulfilled. B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in a domain name by demonstrating any of the following non-exclusive defenses: (i) before any notice to it of the dispute, the respondent's use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or (ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or (iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain, to misleadingly divert consumers. Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established, as it is put in section 2.1 of WIPO Overview 3.0, that a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the disputed domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. There is no evidence in the present case that the Respondent has been commonly known by the disputed domain name, enabling it to establish rights or legitimate interests therein. Furthermore, there is no evidence in the file to prove any of the circumstances mentioned in paragraph 4(c) of the Policy, nor any other circumstances to suggest that the Respondent has rights or legitimate interests in the disputed domain name. page 4 Likewise, and as further discussed under section 7.C of this Decision, it does not seem that the Respondent is making any legitimate noncommercial or fair use of the disputed domain name, but rather that it intends to use the disputed domain name for the purpose of deriving unfair monetary advantage by confusing Internet users and leading them to believe that the site to which the disputed domain name relates is an official site of the Complainant. As established in section 2.5 of WIPO Overview 3.0: "Fundamentally, a respondent's use of a domain name will not be considered 'fair' if it falsely suggests affiliation with the trademark owner; the correlation between a domain name and the complainant's mark is often central to this inquiry." Here, the nature of the disputed domain name carries a risk of implied affiliation. The Panel finds that the Complainant has made out a prima facie case, a case calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the disputed domain name (Telstra Corporation Limited. v. Nuclear Marshmallows, WIPO Case No. D2000-0003). The Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name and that the requirements of paragraph 4(a)(ii) of the Policy have been fulfilled. C. Registered and Used in Bad Faith The Panel is satisfied that the Respondent must have been aware of the Complainant's trademark SEARA mentioned in section 4 above (Factual Background) when it registered the disputed domain name on March 19, 2022. By that time, the Complainant had long ago registered and intensely used the trademark SEARA. By registering the disputed domain name which is almost identical to the Company name "Seara Alimentos Ltda" and includes the Complainant's trademark SEARA in its entirety the Respondent was targeting the Complainant and its business. The addition of "ltda-br" only contributes to confuse Internet users and lead them to think that the relevant website belongs to or is endorsed by the Complainant with the intention to capitalize on the fame of the Complainant's trademark for its own benefit. The fact that there is a clear absence of rights or legitimate interests coupled with no credible explanation for the Respondent's choice of the disputed domain name, the nature of the disputed domain name, the passing-off of the Complainant, and the use of the disputed domain name to resolve to a website offering unauthorized goods which compete with those offered by the Complainant, are indicative of bad faith (as stated in section 3.2.1 of the WIPO Overview 3.0). The Panel finds that the Respondent registered and is using the disputed domain name in bad faith. For the above reasons, the Panel finds that the requirements of paragraph 4(a)(iii) of the Policy have been fulfilled. 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. /Miguel B. O'Farrell/ Miguel B. O'Farrell Sole Panelist Date: April 17, 2023
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