Monsanto Technology, LLC. v 吕健 (lv jian)
WIPO Case No. D2024-0025
•07-03-2024
| ARBITRATION AND MEDIATION CENTER |
ADMINISTRATIVE PANEL DECISION
Monsanto Technology, LLC. v. 吕健 (lv jian)
Case No. D2024-0025
1. The Parties
The Complainant is Monsanto Technology, LLC., United States of America, represented by pm.legal,
Germany.
The Respondent is 吕健 (lv jian), China.
2. The Domain Name and Registrar
The disputed domain name <monsantomail.com> is registered with Alibaba Cloud Computing Ltd. d/b/a
HiChina ( (the “Registrar”).
3. Procedural History
| 8, 2024. On January 8, 2024, the Center transmitted by email to the Registrar a request for registrar | The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on January 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 in English on January 11, 2024. |
| On January 10, 2024, the Center informed the Parties in Chinese and English, that the language of the Registration Agreement for the disputed domain name is Chinese. On January 11, 2024, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not submit any comment on the Complainant’s submission. | |
| 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”). |
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In accordance with the Rules, paragraphs 2 and 4, the Center formally notified the Respondent in English and Chinese of the Complaint, and the proceedings commenced on January 17, 2024. In accordance with the Rules, paragraph 5, the due date for Response was February 6, 2024. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on February 7, 2024.
The Center appointed Karen Fong as the sole panelist in this matter on February 22, 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 is an agrochemical and agricultural biotechnology corporation founded in 1901. In 2018, it was acquired by Bayer AG as part of it crop science division. The Complainant is a major producer of genetically engineered crops. The Complainant’s products and services are provided under the trade mark MONSANTO.
The Complainant owns trade mark registrations for MONSANTO in numerous countries worldwide including
under European Union Trade Mark No. 009798471 for MONSANTO, registered on August 18, 2011 (the
“Trade Mark”).
The Respondent appears to be based in China. The disputed domain name was registered on December 25, 2023. It is not connected to an active website. However, an email server has been configured on the disputed domain name. Further, a Domain-based Message Authentication Reporting and Conformance
(“DMARC”) record has been configured on the disputed domain name.
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 that the disputed domain name is confusingly similar to the Trade Mark, that the Respondent has no rights or legitimate interests with respect to the disputed domain name, and that the disputed domain name was registered and is being used in bad faith. The Complainant requests transfer of the disputed domain name.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 Preliminary Issue: Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11(a), in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement.
The Complaint was filed in English. The Complainant requested that the language of the proceeding be
English for the following main reasons:
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| - | The disputed domain name was registered in ASCII characters and includes the common English word “mail” indicating that the Respondent understands English and is deliberately targeting English speaking Internet users. |
| - | As the Complainant is not able to communicate in Chinese, having to translate the Complaint into Chinese would unfairly disadvantage and burden the Complainant in terms of costs and delay the proceeding and adjudication of this matter. |
The Respondent has not challenged the Complainant’s language request and in fact has failed to file a response in either English or Chinese.
In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the proposed language, time and costs (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.5.1).
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that the language of the proceeding shall be English.
6.2 Substantive Issues
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 trade mark and the disputed domain name. WIPO Overview 3.0, section 1.7.
Based on the available record, the Panel finds the Complainant has shown rights in respect of a trade mark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1.
The Panel finds the entirety of the Trade Mark is reproduced within the disputed domain name. Accordingly,
the disputed domain name is confusingly similar to the Trade Mark for the purposes of the Policy.
WIPO Overview 3.0, section 1.7.
While the addition of the other term here “mail” after the Trade Mark in the disputed domain name may bear on assessment of the second and third elements, the Panel finds the addition of such term does not prevent a finding of confusing similarity between the disputed domain name and the Trade Mark for the purposes of the Policy. WIPO Overview 3.0, section 1.8.
Based on the available record, the Panel finds the first element of the Policy has been established.
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.
While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible 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. 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.
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Having reviewed the record, the Panel finds the Complainant has established a prima facie case that the 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.
Moreover, the nature of the disputed domain name is inherently misleading as it effectively impersonates or suggests sponsorship or endorsement by the Complainant. WIPO Overview 3.0, section 2.5.1.
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.
In the present case, the Panel notes that the Respondent must have been aware of the Trade Mark when he registered the disputed domain name given the Trade Mark was registered prior to registration of the disputed domain name, the reputation of the Trade Mark and the fact that the Trade Mark has no other meaning other than its significance as a trade mark belonging to the Complainant. It is therefore implausible that the Respondent was unaware of the Complainant when he registered the disputed domain name.
In the WIPO Overview 3.0, section 3.2.2 states as follows:
“Noting the near instantaneous and global reach of the Internet and search engines, and particularly in
circumstances where the complainant’s mark is widely known (including in its sector) or highly specific and a
respondent cannot credibly claim to have been unaware of the mark (particularly in the case of domainers),
panels have been prepared to infer that the respondent knew, or have found that the respondent should
have known, that its registration would be identical or confusingly similar to a complainant’s mark. Further
factors including the nature of the domain name, the chosen top-level domain, any use of the domain name,
or any respondent pattern, may obviate a respondent’s claim not to have been aware of the complainant’s
mark.”
The fact that there is a clear absence of rights or legitimate interests coupled with the Respondent’s choice of the disputed domain name without any explanation is also a significant factor to consider (as stated in WIPO Overview 3.0, section 3.2.1). The disputed domain name falls into the category stated above and the Panel finds that registration is in bad faith. The addition of the term “mail” after the Trade Mark further reflects that the Respondent had the Complainant in mind and was targeting it when registering the disputed domain name especially since a mail server has been configured on the disputed domain name.
The disputed domain name is also being used in bad faith. The disputed domain name directs to an inactive page. Panels have found that the non-use of a domain name would not prevent a finding of bad faith under the doctrine of passive holding. Having reviewed the available record, the Panel finds the non-use of the disputed domain name does not prevent a finding of bad faith in the circumstances of this proceeding. Although panelists will look at the totality of the circumstances in each case, factors that have been considered relevant in applying the passive holding doctrine include: (i) the degree of distinctiveness or reputation of the complainant’s mark, (ii) the failure of the respondent to submit a response or to provide any evidence of actual or contemplated good-faith use, and (iii) the respondent’s concealing its identity or use of false contact details (noted to be in breach of its registration agreement). WIPO Overview 3.0, section 3.3. Having reviewed the available record, the Panel notes the distinctiveness or reputation of the Complainant’s trademark, and the composition of the disputed domain name, and finds that in the circumstances of this case the passive holding of the disputed domain name does not prevent a finding of bad faith under the Policy.
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Further, based on the available record, the Panel notes that a mail server and a DMARC record has been configured on the disputed domain name. DMARC is an email validation system that detects and prevents email spoofing. Scammers use it as it improves email deliverability - it helps in stopping email messages sent from addresses associated with the particular domain name from ending up in recipient spam folders.
Although there is no evidence that the Respondent has actually sent phishing or fraudulent emails so far, the presence of an email server and DMARC configured to the disputed domain name are good indicators that the disputed domain name is likely to be used to perpetuate phishing schemes and other email scams. Considering the circumstances, the Panel considers this further supports that the disputed domain name is being used in bad faith.
The Panel therefore finds that the disputed domain name has been registered and is being used in bad faith.
Based on the available record, the Panel finds the third element of the Policy has been established.
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 <monsantomail.com> be transferred to the Complainant.
/Karen Fong/ Karen Fong Sole Panelist Date: March 7, 2024
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