WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Syngenta Participations AG v. Domain Admin, Whois Privacy Corp.
Case No. D2017-1908
1. The Parties
The Complainant is Syngenta Participations AG of Basel, Switzerland, internally represented.
The Respondent is Domain Admin, Whois Privacy Corp. of Nassau, New Providence, Bahamas, self-represented.
2. The Domain Name and Registrar
The disputed domain name <syngentaeastafricaltd.com> is registered with Internet.bs Corp. (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on September 29, 2017. On September 29, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 2, 2017, 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 October 6, 2017. In accordance with the Rules, paragraph 5, the due date for Response was October 26, 2017. Respondent did not submit any response before the Response due date. Accordingly, the Center notified Respondent's default on October 27, 2017. On October 28, 2017, Respondent submitted an informal email communication.
The Center appointed Andrew Mansfield as the sole panelist in this matter on November 9, 2017. 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
Complainant is a company with more than 28,000 employees in some 90 countries. It develops agrochemicals for crop protection as well as vegetable and flower seeds. In 1999, Complainant registered the trademark SYNGENTA worldwide in various jurisdictions. Complainant has trademark registrations that include the following: International Trademark SYNGENTA No. 732663 in classes 01, 02, 05, 07, 08, 09, 10, 16, 29, 30, 31, 32, 35, 36, 41, and 42, as of March 8, 2000 with designations in, Great Britain, France, Germany, China, Russia, Vietnam and Kenya, among others. Complainant has also registered SYNGENTA in numerous countries as national marks such as those in the Bahamas (No. 22339) and Uganda (No. 22898). Complainant further owns a number of domain names including <syngenta.com>, <syngentaafrica.com>, <syngenta.co>, <syngenta.co.uk>, <syngenta.fr>, <syngenta.de>, <syngenta.cn>, <syngenta.ru>, <syngenta.vn>, and <syngenta.co.ke>.
The disputed domain name was registered on August 31, 2017 and does not resolve to an active website.
5. Parties' Contentions
Complainant asserts that the disputed domain name <syngentaeastafricaltd.com> is confusingly similar to its global trademark SYNGENTA. Complainant alleges that the domain name contains its trademark in its entirety. Complainant owns a legal entity named "Syngenta East Africa Ltd." that does business in Kenya. Complainant indicates it has an active business presence and uses an email address including the term "syngenta.east_africa" for that legal entity.
Complainant asserts that Respondent has no rights or legitimate interest in respect to the disputed domain name. Respondent has no affiliation with Complainant and Respondent was not authorized to use the disputed domain name or any of Complainant's marks.
Complainant further argues that the disputed domain name was registered and is being used in bad faith. Complainant asserts that the disputed domain name does not resolve to a website but was used to send fraudulent emails with regards to a shipment of goods from China to Mombasa, Kenya. The disputed domain name was registered on August 31, 2017, and was immediately used to send email by which the disputed domain name was used to mislead the email recipient into believing the email originated with Complainant.
For the reasons specified, Complainant requests that the disputed domain be transferred to it.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed in this administrative proceeding the Complainant must prove that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark of the Complainant; (ii) Respondent has no rights or legitimate interests in respect to the disputed domain name; and (iii) the disputed domain name has been registered and is being used in bad faith.
These elements are discussed in turn below. In considering these elements, paragraph 15(a) of the Rules provides that the Panel shall decide the Complaint on the basis of statements and documents submitted and in accordance with the Policy, the Rules and any other rules or principles of law that the Panel deems applicable.
A. Identical or Confusingly Similar
The Panel agrees with Complainant that the disputed domain name is confusingly similar to its trademark SYNGENTA and the name of one of its African legal entities, "Syngenta East Africa Ltd". The Panel agrees with numerous decisions that hold that a trademark combined with a geographical indicator may render a domain name confusingly similar to the trademark. Complainant cites two UDRP cases decided by prior panels with a similar fact pattern. In both of those cases, the panels found that the domain name consisted of a trademark of Complainant plus a geographic identifier and that this combination was confusingly similar. Syngenta Participations AG v. Simon Laidler / Who Is Agent, WhoIs Privacy Protection Service, Inc., WIPO Case No. D2014-1702; Syngenta Participations AG v. Who Is Agent / Rogerio Biasotto, WIPO Case No. D2015-0253.
The first element of the Policy has been met.
B. Rights or Legitimate Interests
Even when a respondent fails to participate in a UDRP dispute, the complainant is required to make out at least a prima facie case that the respondent lacks rights or legitimate interests. Once such a prima facie case is made, the burden shifts to the respondent to demonstrate rights or legitimate interests under the Policy. If the respondent fails to come forward with such appropriate allegations or evidence, a complainant is deemed to have satisfied the second element of the Policy.
The Complainant has made out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Complainant indicates Respondent was not licensed or authorized to use the trademark at issue or any variation thereof. Respondent has not, as far as Complainant can find, been commonly known by a name identical to or similar to the disputed domain name. Finally, the current use alleged by Complainant is not a legitimate noncommercial or fair use of the trademarks. The Respondent has not come forward with any appropriate allegations or evidence in this regard. Based on the evidence presented, the Panel concludes that the Respondent lacks rights or legitimate interests in the disputed domain names.
The second element of the Policy has, therefore, been met.
C. Registered and Used in Bad Faith
The Policy provides guidance on activities that might be considered evidence of bad faith registration and use of a domain name. That guidance is found in paragraph 4(b) of the Policy. Circumstances are described in paragraph 4(b) that might lead a panel to conclude that the registration and use of a disputed domain name is in bad faith. The description of the circumstances is addressed to the respondent. They are:
(i) circumstances indicating that you have registered or you have acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have 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 you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your 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 your website or location or of a product or service on your website or location.
The Panel finds that Respondent knew of the existence of Complainant's trademarks and had these trademarks in mind at the time of registration of the disputed domain name. The Panel finds that the evidence supports no other conclusion than that the disputed domain name was registered in bad faith for the purpose of using the dispute domain name in email meant to confuse recipients.
It is equally clear that the disputed domain name is also being used in bad faith. The disputed domain name was used in an apparent attempt to perpetrate a fraud by directing or misdirecting shipments and payments. The use of a domain name in an email address meant to confuse the recipient through similarity to a trademark is bad faith use of the disputed domain name. Tetra Laval Holdings & Finance S.A. v. Harry Bradley, Harry B. Holdings Ltd., WIPO Case No. D2016-0616.
For all the below reasons, the Panel concludes that the disputed domain names have been registered and are being used in bad faith. Accordingly, the third condition of paragraph 4(a) of the Policy has been fulfilled.
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 <syngentaeastafricaltd.com> be transferred to the Complainant.
Date: November 27, 2017