Westmore · UDRP DecisionNufarmgroup.com
The Panel ordered transfer of <nufarmgroup.com>. It found the domain confusingly similar to the Complainant’s longstanding NUFARM trademark because the addition of the non-distinctive term “group” did not distinguish it. The Respondent had no rights or legitimate interests, and the evidence showed that the domain had twice resolved to websites displaying the Complainant’s contact details and material copied from its website. The Panel found intentional confusion for commercial gain under paragraph 4(b)(iv), as well as impersonation indicative of bad faith. It did not find the alleged connection between the Respondent and false job advertisements proven.
The timeline behind nufarmgroup.com
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind nufarmgroup.com — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates that repeated use of a trademark-formative domain for websites copying a complainant’s content and contact details can establish impersonation, lack of legitimate interests, and bad faith even when a more serious alleged fraud scheme is not proven. It also shows that later deactivation of the website does not erase evidence of prior bad-faith use.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Nufarm Australia Limited v. Luke James Case No. D2015-0712 1. The Parties The Complainant is Nufarm Australia Limited of Laverton North, Victoria, Australia, represented by Stuart Bradshaw, Australia. The Respondent is Luke James of Peru, Illinois, United States of America (“United States”). 2. The Domain Name and Registrar The disputed domain name <nufarmgroup.com> is registered with Web4Africa Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 20, 2015. On April 20, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On April 28, 2015, 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on April 29, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 19, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on May 20, 2015. The Center appointed Steven A. Maier as the sole panelist in this matter on May 29, 2015. 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 an agricultural chemical limited company located in Australia. The Complainant is the owner of trademark registrations for the mark NUFARM in numerous territories throughout the world. Its registrations include: - Australia trademark No. 603305 for NUFARM filed on May 27, 1993 in Classes 01, 02, 05 and 32; - United States trademark No. 2669585 for NUFARM filed on November 1, 1999 in Classes 01 and 05; - International registration No. 0873207 for NUFARM registered on November 25, 2005 in Classes 01 and 05, designating territories including the European Union. The disputed domain name was registered on March 31, 2015. At the date of the Panel’s review, the disputed domain name did not resolve to any active website. 5. Parties’ Contentions A. Complainant The Complainant submits that that the disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights. In particular, the Complainant submits that the disputed domain name comprises its trademark NUFARM together with the word “group”, which is non-distinctive in nature. The Complainant states that it has over 100 subsidiary companies around the world and that the Complainant is frequently referred to as the “Nufarm Group”. The Complainant submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. In particular, the Complainant states that the Respondent had no trademark registrations or applications for the mark NUFARM at the date of registration of the disputed domain name. The Complainant states that the Respondent has used the disputed domain name for the purpose of websites which falsely represented themselves to be the Complainant’s websites (see below) and that this cannot give rise to rights or legitimate interests in the name. The Complainant submits that the Respondent registered and is using the disputed domain name in bad faith. In particular, the Complainant submits that, as of April 6, 2015, the disputed domain name resolved to a website which included content copied from the Complainant’s own website, including its corporate values and vision statement, as well as the Complainant’s contact details. The Complainant states that on April 7, 2015 it was in communication with the Respondent concerning the disputed domain name. While the Respondent originally solicited a monetary offer for the name, that correspondence was inconclusive. The website of the disputed domain name was taken down on the same date and replaced with an “under construction” page. The Complainant states that the disputed domain name resolved to a new website on April 20, 2015. Again this reproduced content taken from the Complainant’s official website and included a video promoting the operations of the Complainant in Brazil. The website also included content copied from other third-party websites. The Complainant submits that, as a result of “further investigation”, it believes the Respondent has been advertising false job opportunities with the Complainant for the purpose of obtaining sensitive personal information from job applicants. The Complainant does not appear to contend that these advertisements appear on the website linked to the disputed domain name, but suggests that the website is intended to lend “an air of legitimacy” to the false job advertisements. The Complainant submits exhibits, including screen prints and the result of Google searches, which it states support the contentions set out above 1 . The Complainant submits that the Respondent’s contact address is false as there is no building or business situated at the address stated. The Complainant also submits that the Respondent is the registrant of various other domain names that have been identified by various search engines as false or scam websites. The Complainant requests a transfer of the disputed domain name. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings In order to succeed in its Complaint, the Complainant is required to show that all three of the elements set out under paragraph 4(a) of the Policy are present. Those elements are: (i) that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) that the disputed domain name has been registered and is being used in bad faith. Even in a case such as this where the Respondent has failed to file a Response, the Complainant must nevertheless demonstrate to the satisfaction of the Panel, on balance, that each of the above elements is present. A. Identical or Confusingly Similar The Complainant has established that it is the owner of longstanding registrations for the trademark NUFARM in numerous territories. The disputed domain name comprises the terms “nufarm” and “group” and the generic Top-Level Domain (“gTLD”) “.com”, which is typically to be ignored for the purposes of comparison. The Panel accepts the Complainant’s contention that the term “group” is not distinctive and finds that the addition of that term does not operate to distinguish the disputed domain name from the Complainant’s trademark. Accordingly, the Panel finds that the disputed domain name is confusingly similar to a trademark or service mark in which the Complainant has rights. B. Rights or Legitimate Interests The Complainant submits that the Respondent has no trademark rights reflecting the disputed domain name nor any other rights or legitimate interests in that name. While paragraph 4(c) of the Policy sets out a nonexclusive list of circumstances upon which a respondent may rely in order to demonstrate its rights or legitimate interests in a domain name, the Respondent has not participated in these proceedings and has accordingly made no submissions in this regard. Nor is there any other evidence before the Panel to suggest that the Respondent has any rights or legitimate interests in the disputed domain name. On the contrary, as is further considered below, the Panel finds that the Respondent registered and has used the disputed domain name in order to take unfair advantage of the Complainant’s goodwill in its trademark NUFARM, which cannot form a basis for rights or legitimate interests on the Respondent’s part. In the circumstances, the Panel concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith On the basis of the evidence submitted by the Complainant, the Panel finds that the Respondent has, on at least two occasions, used the disputed domain name to resolve to a website that includes the Complainant’s contact details and material copied from the Complainant’s own website. Linked to the Respondent’s choice of the disputed domain name, for which the Respondent has provided no legitimate explanation, the Panel readily infers that the Respondent registered and has used the disputed domain name in the knowledge of the Complainant’s name and trademark and with the intention of taking unfair advantage of the Complainant’s goodwill in that trademark by attracting Internet users to his website under the misapprehension that the site is owned or operated by the Complainant. While the Complainant has not proven to the satisfaction of the Panel that the Respondent has been responsible for the false job advertisements to which the Complainant has referred, the Panel finds on balance that, by using the disputed domain name, the Respondent has intentionally attempted to attract for commercial gain Internet users to his website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of his website (paragraph 4(b)(iv) of the Policy). The Panel finds in any event that the Respondent has used the disputed domain name for the purpose of impersonating the Complainant and that impersonation of this nature is indicative of bad faith whether or not an immediate commercial gain can be demonstrated. The Panel also finds that the Respondent has provided false address details in connection with his registration of the disputed domain name. The fact that the disputed domain name does not currently resolve to any active website does not affect the Panel’s findings. In the circumstances, the Panel finds that the disputed domain name has been registered and is being used in bad faith. 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 name <nufarmgroup.com> be transferred to the Complainant. Steven A. Maier Sole Panelist Date: June 2, 2015 1 However, the Panel does not find it entirely clear from these exhibits which are said to relate to the first website referred to above, to the second website, or exclusively to the false job advertisements.
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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