The Complainant is Monsanto Technology, LLC, United States of America, represented by BPM Legal, Germany.
The Respondent is BV intergroup trading, the Netherlands. 2. The Domain Name and Registrar
The Disputed Domain Name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 7, 2021. On April 9, 2021, the Center transmitted by email to SIDN a request for registrar verification in connection with the Disputed Domain Name. On April 12, 2021, SIDN 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 April 30, 2021, providing the registrant and contact information disclosed by SIDN, and inviting the Complainant to submit an amendment to the Complaint. On May 3, 2021, the Complainant submitted an amended Complaint. The Center verified that the Complaint together with the Amended Complaint satisfied the formal requirements of the Dispute Resolution Regulations for .nl Domain Names (the “Regulations”). In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 3, 2021. In accordance with the Regulations, article 7.1, the due date for Response was May 23, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 25, 2021. The Center appointed Moïra Truijens as the panelist in this matter on June 18, 2021. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background The Complainant is a well-known agrochemical and agricultural biotechnology corporation founded in 1901. In 2018, it was acquired by Bayer AG as part of its crop science division. The Complainant developed Roundup, a glyphosate-based herbicide, in the 1970s, and became a major producer of genetically engineered crops. The Complainant is owner of the trademark MONSANTO in numerous countries worldwide, including European Union trademark registration no. 009798471 MONSANTO, registered on August 18, 2011, hereafter referred to as the “Trademark”. The Complainant has a subsidiary in the Netherlands, namely Monsanto Holland B.V., which supplies not only the Netherlands, but the whole of Europe. SIDN informed the Center that the Disputed Domain Name was registered by the Respondent on December 25, 2020. At the time of the Decision, the Disputed Domain Name was not active. However, according to the evidence annexed to the Complaint, the Disputed Domain Name previously has been used in connection with a scam website falsely claiming to be from the Complainant’s subsidiary Monsanto Holland B.V. Several customers of the Complainant have become victims of the operators of the fraudulent website, with significant reported losses suffered. 5. Parties’ Contentions A. Complainant The Complaint’s contentions may be summarized as follows. The Complainant contends that the Disputed Domain Name is identical to the Trademark. The Complainant asserts that the Respondent is not authorized to use the Trademark. Furthermore, the Respondent is not using the Disputed Domain Name in connection with a bona fide offering of goods and services, therefore lacking any legitimate rights or interests in the Disputed Domain Name. The Complainant contends that the Respondent registered and was using the Disputed Domain Name as a scam website, to mislead and defraud the Complainant’s customers, which must be considered bad faith under the Regulations. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Pursuant to article 2.1 of the Regulations, the Complainant must prove each of the following three elements: a. the Disputed Domain Name is identical or confusingly similar to: I) a trademark or trade name protected under Dutch law in which the Complainant has rights; or II) a personal name registered in the General Municipal Register (Gemeentelijke Basisadministratie) of a municipality in the Netherlands, or the name of a Dutch public legal entity or the name of an association or foundation registered in the Netherlands under which the Complainant undertakes public activities on a permanent basis; and b. the Respondent has no rights to or legitimate interests in the Disputed Domain Name; and, c. the Disputed Domain Name has been registered or is being used in bad faith. As the Respondent has not filed a response, the Panel shall rule on the basis of the Complaint. In accordance with article 10.3 of the Regulations, the Complaint shall in that event be granted, unless the Panel considers it to be without basis in law or in fact. A. Identical or Confusingly Similar The Complainant established that it has rights in the Trademark, registered in the European Union and thus protected under Dutch law. The Disputed Domain Name is confusingly similar to the Trademark as it incorporates the term “monsanto” in its entirety, in addition to the term “holland” (which is frequently used informally to refer to the whole of the country of the Netherlands). According to section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”),1 where the relevant trademark is recognizable within the disputed domain name, the addition of, e.g., a geographical term would not prevent a finding of confusing similarity under the first element. The Panel finds the Disputed Domain Name to be confusingly similar to the Trademark, noting that the country code Top-Level Domain “.nl” may be disregarded when assessing the similarity between the domain name on the one hand, and the relevant trademark on the other hand (see, Roompot Recreatie Beheer B.V. v. Edoco LTD,WIPO Case No. DNL2008-0008). The Complainant has thus established the first element of article 2.1 of the Regulations. B. Rights or Legitimate Interests As is described in the WIPO Overview 3.0, “while the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of ‘proving a negative’, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element.” The Complainant has made a prima facie case that the Respondent lacks rights to or legitimate interests in the Disputed Domain Name. The evidence on record shows that the Respondent does not make legitimate noncommercial or fair use of the Disputed Domain Name as it has been misleadingly presenting Internet users with a website impersonating the Complainant. The Panel moreover notes the evidence of actual fraud perpetuated using the Disputed Domain Name presented in the Complaint; it is self-evident that such conduct would not support a claim to rights or legitimate interests. There are no indications before the Panel of any rights or legitimate interests of the Respondent in respect of the Disputed Domain Name. The Respondent has failed to rebut the Complainant’s assertions. Accordingly, the Panel concludes that the Complainant prevails on the second element of article 2.1 of the Regulations. C. Registered or Used in Bad Faith Conclusive evidence before the Panel indicates that the Disputed Domain Name was registered and has been used to impersonate the Complainant, leading Internet users to believe that they have been dealing with the Complainant. In its attempt to mislead and defraud Internet users, as part of its impersonation attempt, the Respondent placed the Complainant’s trade name on the website to which the Disputed Domain Name resolves, in combination with a false telephone number and email address. This demonstrates the Respondent’s fraudulent intentions with the Disputed Domain Name, affecting the Complainant’s reputation and compromising business transactions with existing and prospective customers. Further evidence of the Respondent’s bad faith lies in the fact that the website at the Disputed Domain Name shows similar to identical products (seeds of crop) as shown on the Complainant’s official websites, which has moreover in fact misled the Complainant’s customers. It is apparent that the Respondent had full knowledge of the Complainant and registered the Disputed Domain Name with no other intention but to profit from impersonating the Complainant. The Panel holds that the Respondent has intentionally attempted to attract for commercial gain Internet users by creating a likelihood of confusion with the Trademark as to the source, sponsorship, affiliation, or endorsement of the website linked to the Disputed Domain Name, as established by article 3.2(d) of the Regulations. Consequently, the requirement of article 2.1(c) of the Regulations has also been met. 7. Decision For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the domain name Moïra Truijens 1 In view of the fact that the Regulations are to an extent based on the Uniform Domain Name Dispute Resolution Policy (“UDRP”), it is well established that both cases decided under the Regulations and cases decided under the UDRP, and therefore WIPO Overview 3.0, may be relevant to the determination of this proceeding (see, e.g., Aktiebolaget Electrolux v. Beuk Horeca B.V.,WIPO Case No. DNL2008-0050).
Panelist
Date: July 2, 2021
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