WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Syngenta Participations AG v. Jean Pierre Pernault
Case No. D2018-1415
1. The Parties
Complainant is Syngenta Participations AG of Basel, Switzerland, internally represented.
Respondent is Jean Pierre Pernault of Paris, France.
2. The Domain Name and Registrar
The disputed domain name <syngenta-eu.com> (the “Domain Name”) is registered with Register.IT SPA (the “Registrar”).
3. Procedural History
The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on June 26, 2018. On June 26, 2018, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On June 28, 2018, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on July 6, 2018 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. On July 6, 2018, the Center notified the Parties in both English and French that the language of the Registration Agreement for the Domain Name was French. On July 9, 2018, Complainant requested for English to be the language of the proceeding, to which Respondent did not reply. Complainant filed an amended Complaint on July 11, 2018.
The Center verified that the Complaint together with the amended 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 Respondent of the Complaint, and the proceedings commenced on July 13, 2018. In accordance with the Rules, paragraph 5, the due date for Response was August 2, 2018. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on August 3, 2018.
The Center appointed Robert A. Badgley as the sole panelist in this matter on August 9, 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
Based in Switzerland, Complainant manufactures and sells agrochemicals for crop protection and also sells vegetable and flower seeds. Complainant sells its wares under the mark SYNGENTA, which mark has been registered in many jurisdictions around the world. For example, Complainant holds International Trademark No. 732663 for the SYNGENTA mark, with designations in the United Kingdom of Great Britain and Northern Ireland, France (Respondent’s country), Germany, Italy, China, the Russian Federation, etc. That mark was registered in March 2000.
Complainant owns a number of domain names, which point to Complainant’s website. Among others, Complainant owns the domain names <syngenta.com>, <syngenta.fr>, <syngenta.eu>, and <syngenta-europe.com>.
The Domain Name was registered on June 14, 2018. The Domain Name has never resolved to an active website. The Domain Name has, however, been used to set up an email address (“[…]@syngenta-eu.com”). This email address was used on at least one occasion to send a letter, purportedly written by Complainant’s CFO, to one of Complainant’s French customers. In the letter attached to the email, Respondent (pretending to represent Complainant) advises the customer that Complainant’s bank account information has been changed, and that payments to Complainant should be made to the new account designated in the email (which account is allegedly controlled by Respondent). The letter bears Complainant’s logo. According to Complainant, this is a phishing scam.
5. Parties’ Contentions
Complainant asserts that it has established the three elements required under the Policy for a transfer of the Domain Name.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to the Domain Name:
(i) the Domain Name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Panel concludes that Complainant has rights in the mark SYNGENTA through registration and use. The Panel finds that the Domain Name is confusingly similar to the SYNGENTA mark. The Domain Name incorporates the distinctive SYNGENTA mark in its entirety and merely appends the geographically descriptive letters “eu” (denoting European Union).
Complainant has established Policy, paragraph 4(a)(i).
B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, Respondent may establish its rights or legitimate interests in the Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your 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) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are making a legitimate noncommercial or fair use of the Domain Name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The Panel concludes that Respondent has no rights or legitimate interests in respect of the Domain Name. Respondent has not come forward to articulate or defend his motives in registering the Domain Name. Nor, based on the undisputed record here, does it appear that Respondent could show any bona fides. He appears to be engaged in a fraudulent phishing exercise.
Complainant has established Policy paragraph 4(a)(ii).
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation”, are evidence of the registration and use of the Domain Name in “bad faith”:
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent has 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other online location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The Panel concludes that Respondent has registered and used the Domain Name in bad faith. Respondent clearly had Complainant’s SYNGENTA mark in mind when registering the Domain Name. By generating a false email address using the name of Complainant’s CFO, and then sending a letter to a French customer of Complainant’s in an obvious attempt to divert the customer’s payments into a bank account controlled by Respondent rather than by Complainant, Respondent was targeting Complainant’s mark here. The phishing scam undertaken by Respondent is doubtless a use of the Domain Name in bad faith.
Complainant has established Policy paragraph 4(a)(iii).
D. Language of the Decision
The Complaint here was submitted in English, but the registration agreement for the Domain Name was in French, and Respondent is located in France. According to section 4.5.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), a panel may choose a language other than that of the registration agreement. Among other factors, the panel may consider indicia “tending to show that it would not be unfair to proceed in a language other than that of the registration agreement.” Here, the Panel observes that the evidence clearly shows that Respondent was using the Domain Name for a fraudulent phishing scam. Further, Respondent chose not to respond to the Complaint or otherwise participate in this proceeding. Under these circumstances, the Panel finds no injustice would be wrought here by rendering this decision in English rather than French.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name <syngenta-eu.com> be transferred to Complainant.
Robert A. Badgley
Date: August 14, 2018