Case Number: D2018-1112
Complainant: Ferm-O-Feed B.V.
Represented by: Novagraaf Nederland B.V.
A Netherlands-based fertilizer company, Ferm-O-Feed B.V., has been found guilty of attempted RDNH after a three-member panel denied the company’s UDRP complaint to the World Intellectual Property Organization. Ferm-O-Feed had been trying to gain control of the domain, fertiplus.com. In issuing its ruling on July 30, 2018, the WIPO panel alluded to an attempt to mislead the panelists, by deliberately providing incomplete facts.
Ferm-O-Feed, represented by Novagraaf Nederland B.V, had argued that trademarks it held from both 2014 and 1990 that entitled it to ownership rights in fertiplus.com; however, the domain owner, represented by Muscovitch Law, argued the term, “fertiplus”, is widely used by a number of business entities across Europe, including by another major company in the Netherlands, doing business under the Fertiplus name.
Ferm-O-Feed also attempted to argue the domain, fertiplus.com, was registered with the intent to sell the domain to the Dutch company. “The Respondent is not using the disputed domain name for a legitimate and noncommercial purpose,” the WIPO summary of the complaint reads. “On the contrary, the Respondent has offered the disputed domain name for sale to the Complainant at ever-increasing prices.”
However, the evidence provided by both the complainant and the domain owner provided contradictory stories for panelists to consider. In the end, the trio of panelists determined they were being mislead, as they wrote, “It is clear to the Panel that the Complainant withheld evidence … which would have clarified that, contrary to the impression given in the Complaint, the Respondent did not make any unsolicited offer to sell the disputed domain name to the Complainant. This was obviously a potentially material fact in the context of whether or not the Respondent registered the disputed domain name specifically for sale to the Complainant.
“In addition, the Complaint was skeletal,” the panel continued. “The Complainant, when alleging bad faith, must have been aware that others, including in its own country, were using the name “Fertiplus” and that it would have needed far more substantiation to establish that the Respondent registered the disputed domain name with the Complainant in mind.”