The Complainant is Glencore International AG, Switzerland, represented by BrandIT GmbH, Switzerland.
The Respondent is Name Redacted, Switzerland 1. 2. The Domain Name and Registrar
The Disputed Domain Name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 4, 2020. On September 7, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Disputed Domain Name. On September 9, 2020, 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 September 10, 2020, 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 amended Complaint on September 11, 2020. The Center verified that the Complaint, together with the amended Complaint, satisfied the formal requirements of the .IO Domain Name Dispute Resolution Policy (the “Policy”), the Rules for .IO Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for .IO 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 September 16, 2020. In accordance with the Rules, paragraph 5, the due date for Response was October 6, 2020. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 7, 2020. The Center appointed Jacques de Werra as the sole panelist in this matter on October 9, 2020. 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 is a subsidiary of Glencore plc, which is a public company limited by shares, incorporated in Jersey and domiciled in Baar (Switzerland). Glencore plc and its subsidiaries form the Glencore group. Founded in the 1974 as a trading company, the Glencore group has grown to become is one of the world’s largest globally diversified natural resource companies. The Glencore group has operations in 35 countries with around 150 mining and metallurgical sites, oil production assets, and agricultural facilities. It has 160,000 employees and contractors worldwide. The revenue of the Glencore group was of USD 215,111 million for the year 2019. The Complainant is the owner of many trademark registrations which contain the word “glencore” (“the Trademark”) among which the following trademarks: - Swiss trademark GLENCORE No. P-450144, registered on March 19, 1996, in classes 1, 4, 6, 22, 29, 30 31, 35, 36, 39, 40, and 42; - European Union trademark GLENCORE No. 012054128, registered on January 5, 2014, in classes 1, 4, 6, 14, 22, 29, 30, 31, 35, 36, 37, 39, 40, and 42; - International trademark GLENCORE No. 691954, registered on March 19, 1998, in classes 1, 4, 6, 22, 29, 30, 31, 35, 36, 39, 40, and 42. The Complainant has registered various domain names which it uses to resolve to the Glencore group’s official websites through which it informs Internet users and potential consumers about its products and services, including the domain names The Complainant has a strong presence online and is very active online via its official website as well as on social media (Facebook and Twitter) to promote the Trademark, and its products and services. The Complainant is followed by 162,778 people on Facebook, 152,900 people on Twitter and 10,900 people on Instagram. The Disputed Domain Name was created on April 29, 2020. It appears that the Disputed Domain Name was initially registered by an organization named “rmb” based in India, as shown in the WhoIs record of May 1, 2020. On May 4, 2020, the Disputed Domain Name already resolved to a website mimicking the Complaint’s official website. From around the date of May 8, 2020, the WhoIs data changed to reflect the Complainant’s name as the registrant’s organization and the United States of America as the registrant’s country. It appears that the registrant’s country was later modified to show Switzerland, as reflected in the WhoIs record dated May 11, 20202 . Initially, the website associated with the Disputed Domain Name was the almost identical replica of the Complainant’s website at “www.glencore.com”, expressly referring to the Trademark and containing very detailed information regarding the Complainant. The website contained a sign-up page on which Internet users could log in. The Disputed Domain Name was also associated to messages sent via the WhatsApp messaging service or posted on the Facebook social platform by which the Respondent has associated the Disputed Domain Name to a scam by which it promised to WhatsApp users large earnings in return of initial money investments by creating the misleading impression that the investments would be connected to the Complainant and to the Complainant’s activities. The Disputed Domain Name does not resolve to an active website anymore as the Complainant filed a request before the Registrar to take down the content of the website associated with the Disputed Domain Name on June 3, 2020. Thus, since June 12, 2020, the Disputed Domain Name is suspended and does not resolve to an active website anymore. 5. Parties’ Contentions A. Complainant The Complainant claims that the Disputed Domain Name incorporates in its entirety the Complainant’s Trademark so that the Disputed Domain Name is identical to the Complainant’s Trademark. The Complainant further claims (in essence) that the Disputed Domain Name was registered on April 29, 2020, many years after the first registration of the Trademark by the Complainant. The Complainant has not licensed or authorized the Respondent to register or use the Disputed Domain Name, nor is the Respondent affiliated to the Complainant in any form. There is no evidence that the Respondent is known by the Disputed Domain Name or owns any corresponding registered trademarks. The Complainant also claims (in essence) that by registering and using the Disputed Domain Name the Respondent has aimed at impersonating the Complainant by using it in connection with a website which was the almost identical replica of the Complainant’s website at “www.glencore.com” and which expressly referred to the Trademark and contained very detailed information regarding the Complainant. The Respondent has also provided false contact information with respect to the Disputed Domain Name which further demonstrates the Respondent’s bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings Paragraph 4(a) of the Policy provides that the complainant must prove each of the following three elements in order to succeed in a proceeding: (i) the respondent’s 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 domain name; and (iii) the respondent’s domain name has been registered or is being used in bad faith. The Panel notes that the factors set forth in paragraph 4 of the Policy are identical to those set forth in paragraph 4 of the UDRP with one exception. Bad faith, as noted in paragraph 4(a)(iii) of the Policy merely requires a complainant to provide sufficient proof of either bad faith registration or bad faith use, not, as required by the UDRP, both. The Panel will rely on relevant UDRP jurisprudence for appropriate guidance, though cognizant of and taking this difference into account. See Facebook, Inc. v. Ronal Yau,WIPO Case No. DIO2020-0001. A. Identical or Confusingly Similar The Panel is satisfied that the Complainant has rights to a trademark or service mark as reflected in the Trademark. A comparison between the Disputed Domain Name and the Trademark shows that the Disputed Domain Name is identical to the Trademark. As a result, based on the rights of the Complainant in the Trademark and on the confusing similarity between the Disputed Domain Name and the Trademark, the Panel finds that the condition of paragraph 4(a)(i) of the Policy is met. B. Rights or Legitimate Interests Pursuant to paragraph 4(c) of the Policy, the Respondent may establish rights to or legitimate interests in the Disputed Domain Names by demonstrating any of the following: (i) before any notice to it 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 has been commonly known by the Disputed 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 Disputed Domain Name, without intent for commercial gain, to misleadingly divert consumers or to tarnish the trademark or service mark at issue. Although the complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, a complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests, and once such prima facie case is made the burden of production shifts to the respondent to come forward with relevant evidence of rights or legitimate interests in the domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1. In the Panel’s opinion, the Complainant has made a prima facie case against the Respondent. The Respondent indeed registered the Disputed Domain Name that reflects the highly distinctive Trademark owned by the Complainant without its authorization. The way the Disputed Domain Name has been used in order to impersonate and imitate the Complainant’s Trademark and corporate activities in order to mislead Internet users (and other users via WhatsApp messages) clearly establishes that the Respondent targeted the Complainant’s Trademark and corporate activities. The Panel notes that it is established that the use of the Disputed Domain Name for fraudulent purposes in order to mislead users cannot confer rights or legitimate interests on the Respondent. WIPO Overview 3.0, section 2.13.1. The Complainant has thus established prima facie that the Respondent has no rights or legitimate interests in the Disputed Domain Name, which has not been challenged by the Respondent (even assuming that it could be challenged) who has not participated in the proceedings. On this basis, the Panel finds that the Respondent has no rights or legitimate interests in the Disputed Domain Name and that paragraph 4(a)(ii) of the Policy is met. C. Registered or Used in Bad Faith Paragraph 4(b) of the Policy states that any of the following circumstances, in particular but without limitation, shall be considered evidence of registration and use of a domain name in bad faith: (i) circumstances indicating that the respondent registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant (the owner of the trademark or service mark) or to a competitor of the complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or (ii) circumstances indicating that the respondent 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) circumstances indicating that the respondent registered the domain name primarily for the purpose of disrupting the business of a competitor; or (iv) circumstances indicating that the respondent intentionally is using the domain name in an attempt to attract, for commercial gain, Internet users to its 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 its website or location. The examples of bad faith registration and use set forth in paragraph 4(b) of the Policy are not meant to be exhaustive of all circumstances from which such bad faith may be found. See Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003. The overriding objective of the Policy is to curb the abusive registration of domain names in circumstances where the registrant is seeking to profit from and exploit the trademark of another. See Match.com, LP v. Bill Zag and NWLAWS.ORG,WIPO Case No. D2004-0230. In this case, the Panel holds that the Respondent registered the Disputed Domain Name in bad faith because the Disputed Domain Name replicates the Trademark and because the Trademark distinctively identifies the Complainant’s Trademark so that the choice of the Disputed Domain Name, which is clearly intended to replicate the Trademark and to refer to the Complainant’s activities, cannot be reasonably explained otherwise than as a reference to the Trademark owned by the Complainant. This is already sufficient for a finding of bad faith under the Policy (it being reminded that the showing of a bad faith registration – without the need to show a bad faith use - is sufficient under the Policy). The Panel notes furthermore that the use of the Disputed Domain Name for fraudulent purposes in order to mislead Internet users constitutes bad faith use under the Policy. WIPO Overview 3.0, section 3.4. The website contained a sign-up page on which Internet users could log in. Such “sign-in page” is likely to be used for phishing purposes, in order to obtain data from Internet users who might have been led to believe that the website associated with the Disputed Domain Name belonged to the Complainant. The reference to the Disputed Domain Name in WhatsApp messages for fraudulent purposes (i.e. scam investment opportunities allegedly associated with the Complainant and the Complainant’s activities) in order to impersonate the Complainant and the Complainant’s Trademark demonstrate that by using the Disputed Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to the website associated with the Disputed Domain Name, by creating a likelihood of confusion with the Complainant’s Trademark as to the source of the website. Such conduct constitutes a bad faith use of the Disputed Domain Name under the Policy. The fact that since June 12, 2020, the Disputed Domain Name is suspended and does not resolve to an active website does not prevent a finding of bad faith. On this basis, the Panel finds that the Respondent registered and has used the Disputed Domain Name in bad faith, whereby it is sufficient under paragraph 4(b) of the Policy to establish a bad faith registration or a bad faith use of the Disputed Domain Name, so that the conditions of paragraph 4(a)(iii) of the Policy are met. 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 Jacques de Werra 1 It appears that the Respondent has engaged in identity theft to register the Disputed Domain Name using a misspelled version of the name of an uninvolved person. Accordingly, the Panel has decided that no purpose can be served by including the misspelled name of this person in this decision, and has therefore redacted this name from the caption and body of this decision. The Panel has, however, attached as Annex 1 to this Decision an instruction to the Registrar regarding transfer of the Disputed Domain Name that includes the misspelled name of the individual, and hereby authorizes the Center to transmit Annex 1 to the Registrar 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 due to exceptional circumstances. See N. M. Rothschild & Sons Limited v. Name Redacted,WIPO Case No. D2017-0922, and Banco Bradesco S.A. v. FAST-12785241 Attn. Bradescourgente.net / Name Redacted,WIPO Case No. D2009-1788. As discussed later in this decision, in light of the similarities between the Policy and the Uniform Domain Name Dispute Resolution Policy (“UDRP”), the Panel refers to prior UDRP cases, where appropriate. 2 Given the circumstances of this case, the Panel considers that the changes of registrant information that were made in the days following the date of creation of the Disputed Domain Name (April 29, 2020) until May 11, 2020 were formal changes that did not have an impact on the substantive control and ownership over the Disputed Domain by the Respondent, given that the names and addresses associated with the Disputed Domain Names did not correspond to real addresses / real entities and given that the fraudulent use of the Disputed Domain Name was not substantially affected by these formal changes.
Sole Panelist
Date: October 15, 2020
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