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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Syngenta Participations AG v. Domain May Be For Sale, Check afternic.com, Domain Registries Foundation

Case No. D2018-1669

1. The Parties

The Complainant is Syngenta Participations AG of Basel, Switzerland, represented by Syngenta Participations AG Intellectual Property, Switzerland.

The Respondent is Domain May Be For Sale, Check afternic.com, Domain Registries Foundation of Panama City, Panama, represented by Willenken Wilson Loh & Delgado, LLP, United States of America ("United States").

2. The Domain Name and Registrar

The disputed domain name <advioncockroach.com> ("Domain Name") is registered with GoDaddy.com, LLC (the "Registrar").

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 24, 2018. On the same day, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 25, 2018, 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 July 31, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 20, 2018. The Respondent submitted an email communication on August 3, 2018 consenting to transfer of the Domain Name. On August 14, 2018, the Center informed the Parties that the UDRP proceeding may be suspended to implement a settlement agreement between the Parties according to paragraph 17 of the Rules. On August 20, 2018, the Complainant submitted its request for continuation of the proceeding. On the same day, the Respondent submitted its Response.

On 4 September, 2018, the Complainant submitted a further statement, requesting that the Panel proceed to a substantive decision on the merits.

The Center appointed Nicholas Smith as the sole panelist in this matter on August 29, 2018. 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 Swiss company specialising in agrochemicals for crop protection, pest protection and crop management and vegetable and flower seeds. The Complainant has more than 28,000 employees in 90 countries. The Complainant offers a cockroach control product under the word mark "advion" (the "ADVION Mark"). As of the date of the Complaint the Advion product is sold in over 45 countries.

The Complainant is the owner of numerous international registrations for the ADVION Mark. In particular the Complainant has registered the ADVION Mark in the United States and the European Union since 2005.

The Domain Name <advioncockroach.com>, was registered on November 4, 2015 and redirects to a website that offers sponsored listings (often referred to as pay-per-click advertisements) relating to pest and cockroach control (the "Respondent's Website").

5. Parties' Contentions

A. Complainant

The Complainant makes the following contentions:

(i) that the Domain Name is identical or confusingly similar to the Complainant's ADVION Mark;

(ii) that the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and

(iii) that the Domain Name has been registered and is subsequently being used in bad faith.

The Complainant is the owner of ADVION Mark, having registered this mark in numerous jurisdictions including the United States and European Union. The Domain Name is confusingly similar to the ADVION Mark, incorporating the ADVION Mark in its entirety with the addition of the descriptive term "cockroach", which is the pest the Advion product is designed to exterminate. This confirms the confusing similarity since it reinforces the impression that the Domain Name is connected to the Advion product.

There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Respondent has no licence or right to use the Domain Name and has never been granted any permission by the Complainant for the registration of the Domain Name. The Domain Name resolves to a page offering the Domain Name for sale, but points to a server known to contain malware.

The Domain Name was registered and is being used in bad faith. The Domain Name is offered for sale for a price exceeding the costs of registration. The Domain Name was registered well after the registration of the ADVION Mark. The Respondent's Website also points to a server that is well-known for the distribution of malware, a further indication of bad faith.

B. Respondent

The Respondent does not admit fault or liability or respond substantively to the allegations raised by the Complainant but indicates that it is willing to voluntarily transfer the Domain Name to the Complainant. It requests that the Panel issue an order on that basis.

6. Discussion and Findings

A. Consent to Transfer

The Respondent has consented to the transfer of the Domain Name to the Complainant. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, section 4.10, states, in response to the question "How do panels handle cases involving a respondent's informal or unilateral consent for the transfer of the domain name to the complainant outside the 'standard settlement process' described above?" that:

"Where parties to a UDRP proceeding have not been able to settle their dispute prior to the issuance of a panel decision using the 'standard settlement process' described above, but where the respondent has nevertheless given its consent on the record to the transfer (or cancellation) remedy sought by the complainant, many panels will order the requested remedy solely on the basis of such consent. In such cases, the panel gives effect to an understood party agreement as to the disposition of their case (whether by virtue of deemed admission, or on a no-fault basis).

In some cases, despite such respondent consent, a panel may in its discretion still find it appropriate to proceed to a substantive decision on the merits. Scenarios in which a panel may find it appropriate to do so include (i) where the panel finds a broader interest in recording a substantive decision on the merits – notably recalling UDRP paragraph 4(b)(ii) discussing a pattern of bad faith conduct, (ii) where while consenting to the requested remedy the respondent has expressly disclaimed any bad faith, (iii) where the complainant has not agreed to accept such consent and has expressed a preference for a recorded decision, (iv) where there is ambiguity as to the scope of the respondent's consent, or (v) where the panel wishes to be certain that the complainant has shown that it possesses relevant trademark rights."

The Panel does not consider the present matter an appropriate matter to exercise its discretion to proceed to a substantive decision on the merits. The Panel notes its obligation pursuant to paragraph 10(c) of the Rules to ensure that the administrative proceeding takes place with due expedition. Were the Panel to entertain the Complainant's request, in the interests of procedural fairness it would also provide the Respondent with an opportunity to make further submissions on the merits. Such action would only serve to delay the resolution of the proceeding and potentially result in the parties incurring additional unnecessary legal costs.

The Panel is satisfied that the Respondent has provided a genuine, unconditional and unilateral consent to the transfer of the Domain Name to the Complainant and the Panel so orders the transfer of the Domain Name to the Complainant.

7. Decision

For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders, without making any findings adverse to the Respondent, that the Domain Name <advioncockroach.com> be transferred to the Complainant.

Nicholas Smith
Sole Panelist
Date: September 5, 2018

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