J.W. Jung Seeds Co. v Zhu Bo

WIPO Case No. D2024-3509

ARBITRATION
AND
MEDIATION CENTER

ADMINISTRATIVE PANEL DECISION

J.W. Jung Seeds Co. v. Zhu Bo

Case No. D2024-3509

1. The Parties

The Complainant is J.W. Jung Seeds Co., United States of America (“U.S.A.”), represented by Husch

Blackwell LLP, U.S.A.

The Respondent is Zhu Bo, China.

2. The Domain Name and Registrar

The disputed domain name <jungseedpromo.com> is registered with Name.com, Inc. (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 28, 2024.
On August 29, 2024, the Center transmitted by email to the Registrar a request for registrar verification in
connection with the disputed domain name. On the same day, 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 (Non-Public Data) and contact information in the Complaint. The
Center sent an email communication to the Complainant on August 29, 2024, 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 September 3, 2024.

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 Respondent of the Complaint, and the proceedings commenced on September 18, 2024. In accordance with the Rules, paragraph 5, the due date for Response was October 8, 2024. The Respondent did not submit any

response. Accordingly, the Center notified the Respondent’s default on October 11, 2024.

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The Center appointed Andrea Mondini as the sole panelist in this matter on October 14, 2024. 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 was established 117 years ago and distributes gardening seeds online under its

“ website and through over 8 million print catalogs per year.

The Complainant owns several trademark registrations, including:

TRADEMARK JURISDICTION INTERNATIONAL

REGISTRATION NUMBER REGISTRATION DATE CLASS

JUNG	U.S.A.	2,160,175	May 26, 1998	Class 35
JUNG	U.S.A.	2,036,703	February 11, 1997	Class 31

The Complainant owns the domain name <jungseed.com> which was registered on October 29, 1997, and hosts its main website.

Because the Respondent did not file a Response, not much is known about the Respondent.

The disputed domain name was registered on July 13, 2024.

According to the evidence submitted with the Complaint, the disputed domain name resolves to a website copying the trademark, logos, images and content from the Complainant’s official website and purporting to offer the same products.

5. Parties’ Contentions

A. Complainant

The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the disputed domain name.

Notably, the Complainant contends as follows:

The disputed domain name is confusingly similar to the JUNG trademark in which the Complainant has rights, because it incorporates this trademark in its entirety, and combines it with the term “seed,” which not only represents the goods in connection with which the Complainant’s JUNG trademark is used, but also mimics the domain name of Complainant’s official site, “ Therefore, addition of the terms “seed” and “promo” is not sufficient to avoid confusing similarity.

The Respondent has no rights or legitimate interests in respect of the disputed domain name. The trademark JUNG has been used to identify the Complainant and its products for more than 100 years. The Respondent has not been authorized by the Complainant to use this trademark, is not commonly known by the disputed domain name, and there is no evidence of the Respondent’s use, or demonstrable preparation to use, the disputed domain name in connection with a bona fide offering of goods and services.

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The disputed domain name was registered in bad faith because it is obvious that the Respondent had knowledge of both the Complainant and its trademark JUNG at the time it registered the disputed domain name, considering the website posted by the Respondent under the disputed domain name copies the Complainant’s website.

Respondent is using the disputed domain name in bad faith by posting a website copying the Complainant’s trademark, as well as logos, images and content copied from the Complainant’s official website. The website posted under the disputed domain name is presumably a scam because on its “About Us” page it states that it operates in the fashion and leather industry. The fact that the website associated with the disputed domain name purports to sell seeds, fruits and plants but informs users that it is in the fashion industry and sells shoes suggests this is a scam website. Respondent chose the disputed domain name for the purpose of driving traffic from users looking for the Complainant to its site and disrupting the business of Complainant by creating a likelihood of confusion with the Complainant.

B. Respondent

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

6. Discussion and Findings

According to paragraph 4(a) of the Policy, in order to succeed, a complainant must establish each of the following elements:

(i) the disputed domain name is identical or confusingly similar to the trademark or service mark in which the

complainant has rights;

(ii) the respondent has no rights or legitimate interests in respect of the disputed domain name; and

(iii) the disputed domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant’s trademark and the disputed domain name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7.

The Complainant has shown rights in respect of a trademark or service mark for the purposes of the Policy.

WIPO Overview 3.0, section 1.2.1.

The Panel finds the entirety of the JUNG mark is reproduced within the disputed domain name.

Although the addition of other terms such as here “seed” and “promo” may bear on assessment of the second and third elements, the Panel finds that in the present case the addition of such terms does not prevent a finding of confusing similarity between the disputed domain name and the mark for the purposes of the Policy, considering that they refer to the products marketed by the Complainant. WIPO Overview 3.0, section 1.8.

The addition of the generic Top-Level Domain (“gTLD”) “.com” in the disputed domain name is a standard registration requirement and as such may be disregarded under the confusing similarity test under the Policy, paragraph 4(a)(i). WIPO Overview 3.0, section 1.11.1.

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

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B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy provides a list of circumstances in which the Respondent may demonstrate rights or legitimate interests in a disputed domain name.

Although the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that for a complainant to prove that a respondent lacks rights or legitimate interests in a domain name may result in the difficult task of “proving a negative”, requiring information that is often primarily within the

knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that
the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the
respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain
name (although the burden of proof always remains on the complainant). If the respondent fails to come
forward with such relevant evidence, the complainant is deemed to have satisfied the second element.
WIPO Overview 3.0, section 2.1.

Having reviewed the available record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name.

The Respondent has not rebutted the Complainant’s prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the disputed domain name such as those enumerated in the Policy or otherwise.

Panels have held that the use of a domain name for illegal activity such as here impersonating the legitimate interests on a respondent. WIPO Overview 3.0, section 2.13.1.

Based on the available record, the Panel finds the second element of the Policy has been established.

C. Registered and Used in Bad Faith

The Panel notes that, for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular, but without limitation, that, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith.

Paragraph 4(b) of the Policy sets out a list of non-exhaustive circumstances that may indicate that a domain name was registered and used in bad faith, but other circumstances may be relevant in assessing whether a respondent’s registration and use of a domain name is in bad faith. WIPO Overview 3.0, section 3.2.1.

In the view of the Panel, noting that that the Complainant’s trademark predates the registration of the disputed domain name and considering that the disputed domain name resolves to a website featuring the Complainant’s trademark and logos, it is inconceivable that the Respondent could have registered the disputed domain name without knowledge of the Complainant’s trademark. In the circumstances of this case, this is evidence of registration in bad faith.

The impression given by the website under the disputed domain name would cause Internet users to believe that this website is operated by the Complainant when, in fact, it is not. The Panel holds that by using the disputed domain name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website in the sense of Policy, paragraph 4(b)(iv).

Based on the available record, the Panel finds the third element of the Policy has been established.

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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 <jungseedpromo.com> be transferred to the Complainant.

/Andrea Mondini/
Andrea Mondini
Sole Panelist
Date: November 1, 2024