{
    "case_number": "CAC-ADREU-008253",
    "time_of_filling": null,
    "domain_names": [
        "monsantoholland.eu"
    ],
    "case_administrator": "Denisa Bilík (CAC) (Case admin)",
    "complainant": [
        "Petra Luh (Bayer AG)"
    ],
    "complainant_representative": null,
    "respondent": [
        "leon manders (Lescongroep)"
    ],
    "respondent_representative": null,
    "factual_background": "The Complainant relies upon the following registered trade mark:\r\n\r\n•  EU trade mark registration no. 009798471, dated 18 August 2011, for the word mark MONSANTO, in class 5 of the Nice Classification.\r\n\r\n(hereinafter, the “Complainant’s trade mark”; “the Complainant’s trade mark MONSANTO”; or “the MONSANTO trade mark”).\r\n\r\nThe domain name <monsantoholland.eu> was registered on 1 August 2021 (“the disputed domain name”) and it resolves to an active website, the particulars of which are set out under section \"Parties' Contentions A. Complainant\" below (“the Respondent’s website”).\r\n\r\nThe Complainant seeks that the disputed domain name be transferred to the Complainant, in accordance with Paragraph B1(b)(11) and Paragraph B11 (b) of the ADR.eu Alternative Dispute Resolution Rules (“the ADR Rules”). The Complainant further advises that it has complied with the eligibility requirement set out in Article 4(2)(b)(i) of the Regulation (EC) no. 733\/2002.",
    "other_legal_proceedings": "The Panel is unaware of any other pending or decided legal proceedings in respect of the disputed domain name.",
    "discussion_and_findings": "A. Preliminary Matter: standing under the ADR Proceeding\r\n\r\nA.1 The Complainant’s trade mark\r\n\r\nAs mentioned under section \"Factual Background\" above, the Complainant relies upon the following registered trade mark:\r\n\r\n•  EU trade mark registration no. 009798471, dated 18 August 2011, for the word mark MONSANTO, in class 5 of the Nice Classification.\r\n\r\nThe Panel notes that the MONSANTO trade mark was registered in the name of Monsanto Technology, LLC. \r\n\r\nThe Panel also notes that the Complainant has provided documentary evidence to demonstrate that the Complainant is the ultimate parent company of Monsanto Technology, LLC, and that the latter granted the Complainant the right to confer to the MONSANTO trade mark in its own name for the purpose of this ADR Proceeding. \r\n\r\nA.2 The Panel’s determination\r\n\r\nIn view of the elements articulated under section A.1 above, the Panel is satisfied that the Complainant has standing to initiate this ADR Proceeding, having met the requirements under Article 10(1) and Article 21(1) of the Regulation.\r\n\r\nB. General\r\n\r\nPursuant to Article 22(1)(a) of the Regulation, an ADR procedure may be initiated by any party where the registration of a domain name is speculative or abusive within the meaning of Article 21. \r\n\r\nArticle 21 of the Regulation and Paragraph B11(d)(1) of the ADR Rules provide that it is incumbent on the Complainant the onus of meeting the following threshold:\r\n\r\n(i)  the disputed domain name is identical with, or confusingly similar to, a name in respect of which a right is recognised or established by the national law of a Member State and\/or Community law and; either \r\n\r\n(ii)  the disputed domain name has been registered by the Respondent without rights or legitimate interest in the name; or \r\n\r\n(iii)  the disputed domain name has been registered or is being used in bad faith. \r\n\r\nPursuant to Paragraph B11(a) of the ADR Rules, the Panel shall decide a Complaint on the basis of the statements and documents submitted and in accordance with such rules. The Panel is also allowed to undertake factual research into matters available on the public record (Paragraph 7(a) of the ADR Rules). \r\n\r\nThe evidence standard under this ADR Proceeding is the balance of probabilities and, on that basis, the Panel will now proceed to determine each of the three legal grounds in turn. \r\n\r\nThe Panel has considered the evidence put forward by the Complainant and has undertaken some factual research into matters available on the public record.\r\n\r\nC. Identical or Confusingly Similar\r\n\r\nThe test under the first ground provides for a juxtaposing approach, according to which the textual components of the disputed domain name and the Complainant’s trade mark are to be compared side by side. \r\n\r\nNonetheless, to achieve success under this legal ground, the Complainant must first of all provide evidence that it owns rights in a trade mark, following which the Panel shall assess the degree of similarity between the trade mark and the disputed domain name. \r\n\r\nThe Panel is satisfied that the Complainant owns trade mark rights in the term “MONSANTO” dating back to at least 2011, thereby meeting the standing required under Article 10(1) of the Regulation.\r\n\r\nThe disputed domain name <monsantoholland.eu> was registered on 1 August 2021, and it is composed of the terms “Monsanto” and “holland”.\r\n\r\nThe Complainant’s trade mark MONSANTO is wholly incorporated into the disputed domain name. The additional term “holland” in the disputed domain name string merely identifies the country which carries this name. In fact, the Panel agrees with the Complainant that the geographic term “holland” enhances the visual and phonetic confusion with the MONSANTO trade mark, in so far as it may well trigger an inference of association with the Complainant. \r\n\r\nThe Panel further notes that TLD suffixes (<.eu> in this matter) are typically disregarded in the assessment of confusing similarity for being part of the anatomy of a domain name (see, for comparative analysis, paragraph 1.11 of the WIPO Jurisprudential Overview 3.0). \r\n\r\nAccordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s trade mark, the result of which being that the Complainant has succeeded under Article 21(1) of the Regulation and Paragraph B11(d)(1)(i) of the ADR Rules. \r\n\r\nD. Rights or Legitimate Interests\r\n\r\nThe Respondent has defaulted in this ADR Proceeding. Nevertheless, the Panel is empowered to draw adverse inferences from the Respondent’s silence (Paragraph B10(a) of the ADR Rules and Article 22(10) of the Regulation).\r\n\r\nThe Panel notes that the Complainant denies categorically any affiliation and\/or association with, or authorisation for, the Respondent of any nature. Moreover, the Complainant further argues that the Respondent is not known by the disputed domain name; and that the Respondent is not making a legitimate non-commercial or fair use of the disputed domain name. \r\n\r\nThe Complainant contends, in particular, that the Respondent’s website diverts Internet users seeking for the Complainant’s services, by intentionally creating a likelihood of confusion with the Complainant’s trade mark as to an affiliation of association between the Complainant and the Respondent and\/or between the Respondent and the Complainant’s trade mark (the consequences of which are particularised under section E below). \r\n\r\nThe Complainant has provided evidence to support its contentions, whereas the Respondent did not rebut any of the Complainant’s assertions. \r\n\r\nThe Panel has considered the available evidence and finds it to lend sufficient credence to the Complainant’s case. \r\n\r\nIn addition, in the Panel’s view, the choice of a domain name which incorporates a complainant’s trade mark wholly (as in this case) or virtually wholly, and is unaccompanied or unsupported by any credible explanation as to the reason for this coincidence, could further evidence a lack of rights or legitimate interests.\r\n\r\nThe Panel therefore finds that the Complainant has succeeded under Article 21(1)(a) of the Regulation and Paragraph B11(d)(1)(ii) of the ADR Rules. \r\n\r\nE. Registered or Used in Bad Faith\r\n\r\nThe bad faith ground is an alternative requirement under the Regulation and the ADR Rules. Therefore, having successfully satisfied the preceding (cumulative) grounds in this ADR proceeding (sections C and D above), the Panel is not required to rule on the bad faith ground. Nonetheless, given that the Complainant has advanced a claim under this ground, the Panel considers that it is proper to make a brief determination on this matter for completeness. In order to meet this ground under the Regulation and the ADR Rules, the Complainant must provide evidence that the disputed domain name was registered or is being used in bad faith.\r\n\r\nBoth the Regulation and the ADR Rules enumerate non-exhaustive circumstances which would evidence bad faith registration and use of a domain name, as follows:\r\n\r\n1. circumstances indicating that the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name to the holder of a name, in respect of which a right is recognised or established by national and\/or European Union law, or to a public body; or\r\n\r\n2. the domain name has been registered in order to prevent the holder of such a name in respect of which a right is recognised or established by national and\/or European Union law, or a public body, from reflecting this name in a corresponding domain name, provided that: \r\n\r\n(i)  the Respondent has engaged in a pattern of such conduct; or \r\n\r\n(ii)  the disputed domain name has not been used in a relevant way for at least two years from the date of registration; or \r\n\r\n(iii)  there are circumstances where, at the time the ADR Proceeding was initiated, the Respondent has declared its intention to use the domain name, in respect of which a right is recognised or established by national and\/or European Union law or which corresponds to the name of a public body, in a relevant way but failed to do so within six months of the day on which the ADR Proceeding was initiated; \r\n\r\n3. the disputed domain name was registered primarily for the purpose of disrupting the professional activities of a competitor; or \r\n\r\n4. the disputed domain name was intentionally used to attract Internet users, for commercial gain to the Respondent’s website or other online location, by creating a likelihood of confusion with a name on which a right is recognised or established, by national and\/or European Union law, or it is a name of a public body, such likelihood arising as to the source, sponsorship, affiliation or endorsement of the website or location or of a product or service on the website or location of the Respondent; or \r\n\r\n5. the disputed domain name is a personal name for which no demonstrable link exists between the Respondent and the domain name registered. \r\n\r\nE.1 Registration in bad faith\r\n\r\nThe following elements are compelling indicia to this Panel that the disputed domain name was registered in bad faith:\r\n\r\n•  The Panel accepts the Complainant’s assertion that the disputed domain name is virtually identical to the Complainant’s trade mark MONSANTO differing only by the addition of the geographical term “holland”, which actually enhances the confusion; \r\n\r\n•  The Complainant is the owner of the domain name <monsanto.com>, which was registered in 1989; \r\n\r\n•  The disputed domain name <monsantoholland.eu> was registered in 2021; \r\n\r\n•  The Respondent’s prima facie pattern of behaviour in so far as the Respondent appears to be behind the registration of the domain names <monsantoholland.com> and <monsantoholland.nl>, both of which were subject to administrative proceedings which resulted in said domain names being transferred to the Complainant; \r\n\r\n•  The lack of any credible evidence-backed rationale for the Respondent’s choice of the disputed domain name; and\r\n\r\n•  The Respondent’s lack of participation in this ADR Proceeding.  \r\n\r\nE.2 Use in bad faith \r\n\r\nThe Complainant contends that the Respondent has engaged in the conduct described in circumstances 2 and 4 above, which provide as follows:\r\n\r\n“2. The domain name has been registered in order to prevent the holder of such a name in respect of which a right is recognised or established by national and\/or European Union law, or a public body, from reflecting this name in a corresponding domain name, provided that: \r\n\r\n(i)  the Respondent has engaged in a pattern of such conduct; or \r\n\r\n(ii)  the disputed domain name has not been used in a relevant way for at least two years from the date of registration; or \r\n\r\n(iii)  there are circumstances where, at the time the ADR Proceeding was initiated, the Respondent has declared its intention to use the disputed domain name, in respect of which a right is recognised or established by national and\/or European Union law or which corresponds to the name of a public body, in a relevant way but failed to do so within six months of the day on which the ADR Proceeding was initiated; \r\n\r\n(…)\r\n\r\n4. the disputed domain name was intentionally used to attract Internet users, for commercial gain to the Respondent’s website or other online location, by creating a likelihood of confusion with a name on which a right is recognised or established, by national and\/or European Union law, or it is a name of a public body, such likelihood arising as to the source, sponsorship, affiliation or endorsement of the website or location or of a product or service on the website or location of the Respondent;”\r\n\r\nThe Panel does not look favourably upon the Respondent, in particular owing to these factual components: (i) the Respondent’s website contains specific references to the Complainant’s company “Monsanto Holland B.V.”; (ii) the Respondent’s website offers agricultural products in direct competition with the Complainant; and (iii) rather worrisomely, whilst the Respondent’s website informs that the products offered are branded “Nickerson-Zwaan”, “SEMINIS”, and “Nunhems”, there is no explanation whatsoever as to reason(s) why the disputed domain name incorporates the word “Monsanto” and\/or the Respondent is named “Monsanto Holland”. \r\n\r\nTaken together, the Respondent’s behaviour suggests that the disputed domain name was registered for a potential financial gain, i.e. to misleadingly diverting Internet users (most likely the Complainant’s - existing or potential - customers because of the use of the Complainant’s trade mark within the disputed domain name string and on the Respondent’s website) to the Respondent’s website and inviting them to consume their products through the Respondent’s website (circumstance 4 above). In particular, the Panel finds that the Respondent has attempted to suggest an affiliation with, or a connection to, or an endorsement of the Complainant or even to impersonate the Complainant through the use of the Complainant’s trade mark MONSANTO in the dispute domain name string and on the Respondent’s website in the manner described above. \r\n\r\nIn view of the finding under circumstance 4 above, the Panel does not consider it to be relevant a ruling under circumstance 2.\r\n\r\nThe Panel therefore finds that the Complainant has succeeded under Article 21(1)(b) of the Regulation and Paragraph B11(d)(1)(iii) of the ADR Rules.",
    "decision": "For all the foregoing reasons, in accordance with Paragraph B12 (b) of the Rules, the Panel orders that the disputed domain name <monsantoholland.eu> be transferred to the Complainant.",
    "panelists": [
        null
    ],
    "date_of_panel_decision": "2022-02-20 00:00:00",
    "informal_english_translation": "I.      Disputed domain name: <monsantoholland.eu>\r\n\r\nII.     Country of the Complainant: Germany, country of the Respondent: The Netherlands\r\n\r\nIII.    Date of registration of the domain name: 1 August 2021\r\n\r\nIV.    Rights relied on by the Complainant (Art. 21(1) Regulation (EC) No 874\/2004) on which the Panel based its decision:\r\n\r\n•  EU trade mark registration no. 009798471, dated 18 August 2011, for the word mark MONSANTO, in class 5 of the Nice Classification.\r\n  \r\nV.    Response submitted: No\r\n\r\nVI.   Domain name is confusingly similar to the protected right of the Complainant\r\n\r\nVII.  Rights or legitimate interests of the Respondent (Art. 21(2) Regulation (EC) No 874\/2004):\r\n        1. No\r\n        2. Why: on balance, the Panel has found that the Respondent lacked any rights or legitimate interests in the disputed domain name, and that the Complainant had made out a prima facie case on the basis of the available record, most compellingly the categorical denial on the Complainant's part of any affiliation and\/or association with, or authorisation for, the Respondent of any nature.\r\n\r\nVIII. Bad faith of the Respondent (Art. 21(3) Regulation (EC) No 874\/2004):\r\n        1. Yes\r\n        2. Why: on balance, the Panel has determined that the disputed domain name was registered in bad faith to target and take advantage of the Complainant's trade mark. The Respondent has attempted to suggest an affiliation with, or a connection to, or an endorsement of the Complainant or even to impersonate the Complainant through the use of the Complainant’s trade mark in the dispute domain name string and on the Respondent’s website.\r\n\r\nIX.   Other substantial facts the Panel considers relevant: None.\r\n\r\nX.    Dispute Result: transfer of the disputed domain name.\r\n\r\nXI.   Procedural factors the Panel considers relevant: None.\r\n\r\nXII.  Is Complainant eligible? Yes",
    "decision_domains": [],
    "panelist": null,
    "panellists_text": null
}