WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
JBS S.A. v. constantine mbufung
Case No. D2020-0388
1. The Parties
The Complainant is JBS S.A., Brazil, represented by SP Law (Spiewok Carneiro), Brazil.
The Respondent is constantine mbufung, Cameroon.
2. The Domain Name and Registrar
The disputed domain name <seara-bra.com> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 18, 2020. On February 19, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 19, 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 February 20, 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 February 20, 2020.
The Center verified that the Complaint together with 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 the Respondent of the Complaint, and the proceedings commenced on February 24, 2020. In accordance with the Rules, paragraph 5, the due date for Response was March 15, 2020. The Respondent sent an email communication on February 20, 2020. On March 16, 2020, the Center informed the Parties that it would proceed with panel appointment.
The Center appointed Reyes Campello Estebaranz as the sole panelist in this matter on March 18, 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 Brazilian group of companies, founded in 1953, which operates internationally being present in over 15 countries with over 400 facilities and offices, and around 230,000 direct employees worldwide. The Complainant operates in the food industry and other segments, including leather, biodiesel, collagen, metal packaging and cleaning products, under various trademarks that identify its products and services as well as its subsidiaries, among others, the trademark SEARA and the company Seara Alimentos Ltda. The SEARA branded products are prepared food, as well as fresh meat and other food products.
The Complainant’s group holds trademark rights in the mark SEARA alone or in combination with other figurative and word elements, both in Brazil and internationally, of which the following are sufficient representatives for the present proceeding:
- Uruguay Trademark No. 419786 SEARA, figurative, registered on August 15, 2014, in class 30;
- Brazil Trademark No. 909177945 SEARA DAGRANJA, figurative, registered on December 5, 2017, in class 30;
- Brazil Trademark No. 909177953 SEARA VERDE, figurative, registered on December 5, 2017, in class 29;
- Brazil Trademark No. 904508706 SEARA GRILL & CHEF, figurative, registered on March 13, 2018, in class 30.
The disputed domain name was registered on October 27, 2019 and it is linked to a website, in English language, including in its heading, at the top before the content of the website, the trademark SEARA, with identical representation to the Complainant’s figurative marks. This website offers online selling of various fresh poultry products, indicating in its “who we are” section that “SEARA is one of the largest distributor of frozen chicken around the world”.
5. Parties’ Contentions
Key contentions of the Complaint may be summarized as follows:
The trademark SEARA is widely known and reputed in the food sector, having being awarded with several recognitions and certifications worldwide.
The disputed domain name is confusingly similar to the Complainant’s mark SEARA. The disputed domain name is composed of the mark SEARA followed by the generic word “bra”, which alludes to Brazil, reinforcing the likelihood of confusion and association with the Complainant.
The Respondent has no rights or legitimate interests in the disputed domain name, not having any relationship with the Complainant or any license or authorization to use the Complainant’s trademark. There is no evidence the Respondent is commonly known by the disputed domain name or holds any trademark rights in connection with the disputed domain name.
The disputed domain name was registered and is being used in bad faith. The website linked to the disputed domain name reveals that the Respondent registered the disputed domain name being aware of the fame and notoriety of the Complainant and its trademark SEARA, using fraudulently the disputed domain name, introducing himself as the Complainant, to intentionally mislead and divert Internet users for a commercial gain.
The Complainant has cited previous decisions under the Policy that it considers supportive of its position.
The Complainant requests the transfer of the disputed domain name.
The Respondent did not reply to the Complainant’s contentions. The Respondent sent an email communication on February 20, 2020, requesting information about how to proceed.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that, in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(i) the 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 domain name has been registered and is being used in bad faith.
The Complainant has made the relevant assertions as required by the Policy. The dispute is properly within the scope of the Policy and the Panel has authority to decide the dispute.
Paragraph 15(a) of the Rules provides that “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”. The Panel has taken into consideration all of the evidence, annexed material and submissions provided by the Parties, and has performed some limited independent research under the general powers of the Panel articulated inter alia in paragraphs 10 and 12 of the Policy. See section 4.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”).
A. Identical or Confusingly Similar
In cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered identical or confusingly similar to that mark for purposes of the Policy. In such cases, the addition of terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element, although the nature of such additional term(s) may bear on assessment of the second and third elements. See sections 1.7 and 1.8 of WIPO Overview 3.0.
The Complainant indisputably has rights in the registered trademark SEARA, incorporated in the disputed domain name followed by the term “bra”, separated by a hyphen, which does not prevent a finding of confusing similarity with the mark. The Complainant’s mark SEARA is directly recognizable in the disputed domain name, and the generic Top-Level Domain (“gTLD”) “.com” is a technical requirement, generally disregarded for the purpose of the analysis of confusing similarity. See section 1.11, WIPO Overview 3.0. Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s mark, and the first element of the Policy under paragraph 4(a)(i) has been satisfied.
B. Rights or Legitimate Interests
Although the Complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, UDRP panels have recognized that this could result in the often impossible task of proving a negative, requiring information that is primarily if not exclusively within the Respondent’s knowledge. Thus, the consensus view is that paragraph 4(c) of the Policy shifts the burden of production of evidence of rights or legitimate interests in the disputed domain name to the Respondent, once the Complainant has made a prima facie showing indicating the absence of such rights or legitimate interests.
The Complainant has alleged that the Respondent is not a licensee nor has he been otherwise authorized to use the trademark SEARA, and that the disputed domain name has been used for commercial gain with the purpose of capitalizing on this mark’s reputation. This effectively shifts the burden of producing evidence of rights or legitimate interests in the disputed domain name to the Respondent.
However, the Respondent did not reply to the Complainant’s contentions not providing any explanation or evidence of rights or legitimate interests in the disputed domain name.
The Panel further notes that a core factor in assessing fair use of a domain name is whether the domain name falsely suggests affiliation with the Complainant’s trademark. See section 2.5, WIPO Overview 3.0. The disputed domain name incorporates the Complainant’s trademark in its entirety, followed by a term (“bra”) that could be seen as referring to the Complainant’s home country (Brazil), which may point to an intention to confuse Internet users seeking for or expecting the Complainant, corroborated by the website content linked to the disputed domain name. The website linked to the disputed domain name reproduces the Complainant’s figurative mark SEARA it is heading, allegedly offering online selling of products in the same Complainant’s industry. Therefore, the Panel considers that there is a risk of implied affiliation and confusion that may lead Internet users to believe that the disputed domain name is owned or related to the Complainant or to a subsidiary of the Complainant.
All the above-mentioned circumstances lead the Panel to conclude that the Respondent has not produced evidence to rebut the Complainant’s prima facie case, and all the cumulative facts and circumstances indicate that the Respondent lacks any rights or legitimate interests in the disputed domain name. Therefore, the second element of the Policy under paragraph 4(a)(ii) has been established.
C. Registered and Used in Bad Faith
The Policy, paragraph 4(a)(iii), requires that the Complainant establish that the disputed domain name “has been registered and is being used in bad faith”.
At the time of the disputed domain name’s registration, the Panel considers unlikely that the Respondent did not know about the SEARA mark, and did not have it in mind. The circumstances of this case lead to this conclusion. Particularly, the extensive presence of this trademark as well as the Complainant’s subsidiary Seara Alimentos Ltda. over the Internet, and their notorious character in the food industry worldwide, the inclusion in the disputed domain name of the term “bra” (related to the Complainant and its subsidiary home country) and the content of the website liked to the disputed domain name.
The disputed domain name is linked to a website, which incorporates the Complainant’s trademark in its heading, with identical graphic representation, allegedly selling fresh meat products, which are one of the Complainant’s products. These circumstances point to an intention to create confusion or affiliation with the Complainant to misleadingly attract Internet users to the Respondent’s website.
The Panel further notes the reaction of the Respondent to the Complaint, not providing any explanation or evidence supporting any rights or legitimate interests in the disputed domain name.
Taking into account all cumulative circumstances of this case, the Panel considers that the disputed domain name was very likely registered and used, targeting the mark SEARA, with the intention of creating a likelihood of confusion as to the affiliation or association with the Complainant, its subsidiary and its trademark, trying to misleadingly attract Internet users to the Respondent’s website, and disrupting the Complainant’s business.
These are circumstances of bad faith in accordance to paragraph 4(b) of the Policy.
All the above-mentioned leads the Panel to conclude that the disputed domain name was registered and is being used in bad faith. Accordingly, the Panel concludes that the Complainant has met its burden of establishing that the Respondent registered and is using the disputed domain name in bad faith under the third element 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 disputed domain name <seara-bra.com> be transferred to the Complainant.
Reyes Campello Estebaranz
Date: March 25, 2020