WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
AGCO Corporation v. Uberto Bonetti, AGCO Italia SpA
Case No. D2019-0271
1. The Parties
The Complainant is AGCO Corporation of Georgia, United States of America (“United States” or “US”), internally represented.
The Respondent is Uberto Bonetti, AGCO Italia SpA of Breganze, Italy.
2. The Domain Name and Registrar
The disputed domain name <agcoitalia.com> (the “Domain Name”) is registered with Shinjiru Technology Sdn Bhd (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 4, 2019. On February 5, 2019, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 6, 2019, 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 February 13, 2019. In accordance with the Rules, paragraph 5, the due date for Response was March 5, 2019. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 6, 2019.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on March 18, 2019. 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 US company with worldwide presence in the industry of high tech solutions for farmers, including agricultural equipment, such as tractors. The Complainant has a subsidiary in Italy in the form of AGCO Italia SpA.
The Complainant owns multiple trademark registrations incorporating its AGCO trademark, such as European Union Trademark Registration No 13671672, registered on June 24, 2015, and European Union Trademark Registration No 4660247, registered on July 25, 2006.
According to the Registrar, the Domain Name was registered on October 21, 2018. At the time of filing the Complaint, the Domain Name resolved to a website offering inter alia tractors for sale and provides a contact address belonging to the Complainant’s Italian subsidiary. At the time of drafting the Decision, the Domain Name resolved to an error page.
5. Parties’ Contentions
The Complainant provides evidence of trademark registrations. The Domain Name incorporates the trademark in its entirety. The addition of the term “italia” does not prevent confusion.
The Complainant has not given the Respondent the authorization or consent to use its trademarks in any manner. The Respondent is not commonly known by the Domain Name, and there is no evidence of use in connection with a bona fide offering of goods or services. The Complainant underlines that the Respondent has provided his contact address as that of the Complainant’s subsidiary AGCO Italia SpA. A check of the company email address directory done by the Complainant revealed no-one of the Respondent’s name as an employee of the Complainant’s subsidiary.
The Complainant argues that the Respondent acquired and is commercially using the Domain Name to divert Internet traffic intended for the Complainant and thereby disrupting the business of a competitor. The website operating at that Domain Name gives the corporate address of the Complainant’s subsidiary as the contact address. Any complaints generated by the operators of that website will be directed towards the Complainant’s subsidiary. The use of false contact details supports a finding of bad faith. Additionally, the website provides a VAT number that corresponds to the “Partita TVA” of the Complainant’s subsidiary. Finally, the Complainant argues that the Complainant is one of the world’s largest manufacturers of agricultural equipment, including tractors. The Respondent knew or should have known of the Complainant and/or the Complainant’s subsidiary in Italy.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
A. Identical or Confusingly Similar
The Complainant has established that it has rights in the trademark AGCO. The test for confusing similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name incorporates in entirety the Complainant’s trademark. The addition of the term “italia”, does not avoid a finding of confusing similarity. For the purpose of assessing confusing similarity, it is permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”) “.com”, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.11.
The Panel finds that the Domain Name is confusingly similar to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
The Complainant has made unrebutted assertions that it has not granted any authorization to the Respondent to register a domain name containing the Complainant’s trademark or otherwise make use of its mark. Based on the evidence, the Respondent is not affiliated or related to the Complainant in any way. There is no evidence that the Respondent has registered the Domain Name as a trademark or acquired unregistered rights. There is no evidence of the Respondent’s use of, or 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. On the contrary, the Domain Name has resolved to a web page selling tractors using the contact address of the Complainant’s subsidiary in Italy. The Respondent has offered no explanation as to why he has done this.
The Panel finds the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
The Domain Name incorporates the trademark AGCO. Taking into account that the Complainant has a subsidiary in Italy and the Respondent has directed the Domain Name to a web page selling tractors using the address of the Complainant’s subsidiary in Italy, it seems more likely than not that the Respondent knew of the Complainant and its business when he registered the Domain Name.
Noting the Respondent’s use of the Domain Name, it seems that the Respondent has attempted to attract Internet users to the Respondent’s websites for commercial gain by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s websites. Moreover, the Respondent has not replied to the Complainant’s contentions. The Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of paragraph 4(a)(iii) of the Policy.
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 <agcoitalia.com> be cancelled.
Date: March 29, 2019