WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Glencore International AG v. Domain Administrator, See PrivacyGuardian.org / Alanna Wisozk, Fisher LLC, WhoisGuard Protected, WhoisGuard, Inc. / Edswe Henry, Hassan Benda, dgt, Mark David, Donald Ugbebor, Dsenator.club and Leo Smart, Dsenator.club

Case No. D2020-2908

1. The Parties

The Complainant is Glencore International AG, Switzerland, represented by BrandIT GmbH, Switzerland.

The Respondents are Domain Administrator, See PrivacyGuardian.org, United States of America (“United States”) / Alanna Wisozk, Fisher LLC, United States; WhoisGuard Protected, WhoisGuard, Inc., Panama / Edswe Henry, United States; Hassan Benda, dgt, Nigeria; Mark David, United States; Donald Ugbebor, Dsenator.club, Nigeria; and Leo Smart, Dsenator.club, Nigeria.

2. The Domain Names and Registrars

The disputed domain names <glencorecapitalinvest.com>, <glencoreinvestm.com>, <glencoreinvestments.club>, <glencoreinvestments.net>, <glencoreinvestments.org> and <glencoreminers.com> are registered with NameCheap, Inc. and the disputed domain name <glencoreinvest.com> is registered with NameSilo, LLC (the “Registrars”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 3, 2020. On November 4, 2020, the Center transmitted by email to the Registrars a request for registrar verification in connection with the disputed domain names. On November 4, 2020, the Registrars transmitted by email to the Center their verification responses disclosing registrants and contact information for the disputed domain names, which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on November 11, 2020 providing the registrants and contact information disclosed by the Registrar, and requesting the Complainant to amend the Complaint adding the Registrar-disclosed registrants as formal Respondents and provide relevant arguments or evidence demonstrating that all named Respondents are, in fact, the same entity and/or that all disputed domain names are under common control; and/or file a separate complaint for any disputed domain name(s) for which it is not possible to demonstrate that all named Respondents are in fact the same entity and/or that all disputed domain names are under common control and indicate (by short amendment or reply email) which disputed domain name(s) will no longer be included in the current Complaint. The Complainant filed an amended Complaint on November 16, 2020.

On November 26, 2020, the Center noted that there appears to be at least prima facie grounds sufficient to warrant accepting the Complaint for the Panel’s final determination of the consolidation request on appointment.

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 the Respondents of the Complaint, and the proceedings commenced on November 26, 2020. In accordance with the Rules, paragraph 5, the due date for Response was December 16, 2020. The Respondents did not submit any response. Accordingly, the Center notified the Respondents’ default on December 17, 2020.

The Center appointed Wilson Pinheiro Jabur as the sole panelist in this matter on January 5, 2021. 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, part of the Glencore group, trading in more than 35 countries and presently exploiting natural resources and suppling energy and mobility transition materials.

It is the owner of the GLENCORE trademark, duly registered in several jurisdictions amongst which in the European Union under No. 012054128 on January 5, 2014 in International classes 1, 4, 6, 14, 22, 29, 30, 31, 35, 36, 37, 39, 40, and 42 (Annex 8 to the Complaint) as well as of the domain names <glencoreinvestments.com> (registered on March 30, 2016), <glencore.ch> (registered on October 24, 1997) and <glencore.com> (registered on May 29, 1996).

The disputed domain names appear to have been used in connection with an attempt to impersonate the Complainant and are presently used in connection with:

5. Parties’ Contentions

A. Complainant

The Complainant asserts to be a subsidiary of Glencore plc, which is a public company incorporated in Jersey and domiciled in Baar, Switzerland, forming a group of companies that was founded in 1974 and which is currently present in 35 countries with around 150 mining and metallurgical sites, oil production assets and agricultural facilities. The Complainant further asserts to be a major supplier of energy and mobility transition materials counting with 160,000 employees and contractors worldwide as well as with a revenue of USD 215,111 million for the year 2019 and USD 219,754 million for the year 2018 (Annex 7 to the Complaint).

The Complainant sustains that the disputed domain names are under common control and requests that they be dealt with at a single proceeding given that: (i) six of the seven disputed domain names were registered with the same registrar; (ii) four disputed domain names share the same host provider, and two other disputed domain names share a second host provider; (iii) two of the disputed domain names have the same IP address; (iv) all of the disputed domain names were registered within a few months apart; (v) the disputed domain names follow the same structure and are similar in their spelling; and (vi) the contents of the webpages associated with the disputed domain names present similar structures and visual displays (including same contact details and contents in part of the webpages).

The disputed domain names, according to the Complainant, reproduce entirely the Complainant’s well-known GLENCORE trademark with the addition of the descriptive terms “capital”, “invest”, “miners”, “investments”, and “investm” (a misspelled version of “invest”), which is not sufficient to avoid a finding of confusing similarity under the Policy.

Regarding the absence of the Respondents’ rights or legitimate interests, the Complainant argues that:

i. the Complainant has not licensed or authorized the Respondents to register or use the disputed domain names, nor are the Respondents affiliated to the Complainant in any form;

ii. the Respondents have used the disputed domain names either displaying false information or in an attempt to impersonate the Complainant and divert Internet users to the websites available at the disputed domain names (including mentions to having “headquarters in Baar, Switzerland” – location where the Complainant is based; affirmations that it belongs to a “multinational commodity trading and mining company”; as well as the indication of the name of the CEO of the Glencore group (Ivan Glasenberg) being also prominently displayed and Internet users being invited to click on links named “verify on Wikipedia” and “CEO, Ivan Glasenberg Wikipedia Page”, directing to the Wikipedia paged regarding the Glencore group and its CEO); and

iii. the Respondents seek to create undue association with the Complainant in order to conduct scams promising large earnings to Internet users in return of initial money investments, having harmed Internet users (Annex 14 to the Complaint).

Furthermore, the Complainant submits that it is clear that the Respondents have registered and used the disputed domain names attempting to pass off as the Complainant so as to conduct scams promising large earnings to Internet users in return of initial money investments; having specifically registered the disputed domain names that reproduce entirely the Complainant’s well-known trademark under privacy protection services so as to conceal their identities, also not replying to the cease and desist letters sent prior to the filing of this Complaint (Annex 16 to the Complaint), what further corroborates the Respondents’ bad faith conduct.

B. Respondents

The Respondents did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy sets forth three requirements, which have to be met for this Panel to order the transfer of the disputed domain names to the Complainant:

(i) the disputed domain names are identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

(ii) the Respondents have no rights or legitimate interests in respect of the disputed domain names; and

(iii) the disputed domain names have been registered and are being used in bad faith.

The Complainant must prove in this administrative proceeding that each of the aforesaid three elements is present in order to obtain the transfer of the disputed domain names.

Before turning to these questions, however, the Panel needs to address the issue of consolidation of multiple Respondents.

A. Consolidation of Multiple Respondents

The Complainant requests that this Panel accept multiple Respondents in a single proceeding in view of the facts enumerated at section 5.A. above.

Section 4.11.2 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) establishes that “[w]here a complaint is filed against multiple respondents, panels look at whether (i) the domain names or corresponding websites are subject to common control, and (ii) the consolidation would be fair and equitable to all parties. Procedural efficiency would also underpin panel consideration of such a consolidation scenario”.

All of the aforementioned criteria are present in this case and therefore this Panel accepts such request considering that it would be more procedurally efficient to have the seven disputed domain names dealt with at the same proceeding, given that the disputed domain names share a number of characteristics: a) they relate to the same trademark that belongs to the Complainant and is prominent and entirely reproduced at the disputed domain names, b) they appear to have been used in connection with the same scam that seeks to impersonate the Complainant and/or provides false information as to the entity in charge of the disputed domain names, c) six of the seven disputed domain names were registered with the same registrar, d) four of the disputed domain names share the same host provider, and two other disputed domain names share a second host provider and e) the contents of the webpages associated with the disputed domain names present similar structures and visual displays (including same contact details and contents in part of the webpages).

This Panel is satisfied, in view of the evidence submitted and on balance that the disputed domain names are indeed subject to a common control and that consolidation would be fair and equitable to all Parties.

B. Identical or Confusingly Similar

The Complainant has established its rights in the GLENCORE trademark, duly registered in several jurisdictions around the world (Annex 8 to the Complaint).

The Panel finds that the disputed domain names reproduce the Complainant’s well-known trademark in its entirety. The addition of the generic terms “capital”, “invest”, “miners”, “investments”, and “investm” (a misspelled version of “invest”), does not avoid a finding of confusing similarity under the Policy which, as recognized by past UDRP panels, involves a “comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the disputed domain name” (WIPO Overview 3.0, sections 1.7 and 1.8).

The Panel finds that the first element of the Policy has therefore been established.

C. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a non-exclusive list of circumstances that may indicate the Respondents’ rights to or legitimate interests in the disputed domain names. These circumstances are:

(i) before any notice of the dispute, the Respondents’ use of, or demonstrable preparations to use, the disputed domain names or a name corresponding to the disputed domain names in connection with a bona fide offering of goods or services; or

(ii) the Respondents (as individuals, businesses, or other organizations) have been commonly known by the disputed domain names, in spite of not having acquired trademark or service mark rights; or

(iii) the Respondents are making a legitimate noncommercial or fair use of the disputed domain names, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

The Respondents, in not responding to the Complaint, have failed to invoke any of the circumstances, which could demonstrate, pursuant to paragraph 4(c) of the Policy, any rights or legitimate interests in the disputed domain names. This entitles the Panel to draw any inferences from such default as it considers appropriate, pursuant to paragraph 14(b) of the Rules. Nevertheless, the burden of proof is still on the Complainant to make at least a prima facie case against the Respondents under the second UDRP element.

In that sense, and according to the evidence submitted, the Respondents’ use of the disputed domain names to impersonate the Complainant and to conduct scams in connection with webpages depicting false information clearly cannot be considered a bona fide offering of goods or services.

In addition to that, the absence of any indication that the Respondents have been commonly known by the disputed domain names, or that they have acquired any registered trademarks or trade names corresponding to the disputed domain names, as well as the Complainant’s statement that it has not licensed or authorized the Respondents to register or use the disputed domain names, nor are the Respondents affiliated to the Complainant in any form corroborate with the indication of the Respondents’ lack of rights or legitimate interests in the disputed domain names.

Under these circumstances and absent evidence to the contrary, the Panel finds that the Respondents do not have rights or legitimate interests with respect to the disputed domain names.

D. Registered and Used in Bad Faith

The Policy indicates in paragraph 4(b) that bad faith registration and use can be found in view of:

(i) circumstances indicating that the Respondents have registered or acquired the disputed domain names primarily for the purpose of selling, renting, or otherwise transferring them to the Complainant who is the owner of a trademark relating to the disputed domain names or to a competitor of the Complainant, for valuable consideration in excess of the Respondents’ documented out-of-pocket costs directly related to the disputed domain names; or

(ii) the Respondents have registered the disputed domain names in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondents have engaged in a pattern of such conduct; or

(iii) the Respondents have registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or

(iv) by using the disputed domain names, the Respondents have intentionally attempted to attract, for commercial gain, Internet users to the Respondents’ websites or other location, by creating a likelihood of confusion with the Complainants’ mark as to the source, sponsorship, affiliation, or endorsement of the Respondents’ websites or location or of a product or service on the Respondents’ websites or location.

In this case, the use of the disputed domain names in connection with an attempt to impersonate the Complainant and/or fraudulent scams and with webpages that reproduce the Complainant’s information, characterizes the Respondents’ intent of commercial gain by misleadingly diverting the Complainant’s consumers (WIPO Overview 3.0, section 3.4). Moreover, the choice to retain privacy protection services so as to conceal their true identities and the lack of reply to the cease and desist letters sent prior to the beginning of this procedure are further indications of the Respondents’ bad faith.

For the reasons above, the Panel finds that the Respondents’ actions amount to bad faith registration and use of the disputed domain names pursuant to paragraph 4(b)(iv) of the Policy.

7. Decision

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 names, <glencorecapitalinvest.com>, <glencoreinvest.com>, <glencoreinvestm.com>, <glencoreinvestments.club>, <glencoreinvestments.net>, <glencoreinvestments.org>, and <glencoreminers.com> be transferred to the Complainant.

Wilson Pinheiro Jabur
Sole Panelist
Date: January 19, 2021