The Complainant is Archer-Daniels-Midland Company of Decatur, Illinois, United States of America ("United States" or "US"), represented by Innis Law Group LLC, United States.
The Respondent is Junchao Ma of Beijing, China. 2. The Domain Name and Registrar
The disputed domain name is registered with Web Werks India Pvt. Ltd (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 22, 2017. On February 28, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 1, 2017, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the Respondent's 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 9, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 29, 2017. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 30, 2017.
The Center appointed Alfred Meijboom as the sole panelist in this matter on April 10, 2017. 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 submitted evidence of it owning many registered trademarks for ADM in many jurisdictions worldwide, including US trademark registration ADM with registration number 1,386,430 of March 18, 1986 for, inter alia, chemicals for industrial use, processed foods and staple foods, the first use dating back to 1923, and Chinese trademark registration ADM (device) with registration number 1969681 of December 7, 2002 for goods in class 1 and ADM in Chinese characters with registration number of 4858138 of May 14, 2008 for goods in class 31 (the "ADM Mark").
The Respondent registered the disputed domain name on January 20, 2016. It resolved to a website which has pay-per-click links including related links for "Archer Daniels Midland", "ADM Milling" and "ADM Grain Bids" ("Respondent's Website"). The Respondent's Website is currently inactive. 5. Parties' Contentions A. Complainant
The Complainant is a global agricultural products company which was founded in 1902 and is now an international multibillion dollar company with over 30,000 employees serving customers in more than 140 countries around the world. Besides being active in the agricultural branch the Complainant sells products and offers services in numerous other branches. According to the Complainant, the ADM Mark was adopted and has been continually used in the United States since at least as early as 1923 in connection with numerous products and services, and the Complainant owns numerous trademark registrations for the ADM Mark. The Complainant has an extensive online presence with its main website connected to the domain name which website it uses to provide customer services and redirect customers to (one of) the Complainant's online ordering platforms. The Complainant claims that it has implemented an aggressive enforcement program and strongly polices, protects and enforces its trademark rights, especially its key ADM Mark. Between 2013 and 2016 the Complainant brought eight successful UDRP actions against infringing domain names containing the ADM Mark. The Complainant further claims to own many domain names which incorporate the ADM Mark, including the domain name which was previously used by the Complainant's employees in their email communications to clients and other employees. The domain name presently redirects the user to the Complainant's e-commerce website "www.e‑". As a result of the Complainant's continuous use and promotion of the ADM Mark, the Complainant allegedly has maintained a consistent and long-standing international presence not only as a global agribusiness company with operations all over the world, but also in a diverse range of other business activities. According to the Complainant the disputed domain name is necessarily visually confusingly similar to the ADM Mark, given the reputation of the ADM Mark. The disputed domain name completely and entirely incorporates the ADM Mark, and the "ADM" portion of the domain name is clearly the most prominent part of the disputed domain name, as the "world" portion of the disputed domain name cannot negate the confusing similarity with the ADM Mark since "world" is descriptive and non-distinctive. Moreover, the inclusion of the generic term "world" greatly increases the confusing similarity given the Complainant's strong worldwide presence and its use of the domain name . In fact, the Complainant contends that the disputed domain name could easily be mistaken for the Complainant's website under the domain name .
According to the Complainant the Respondent has no rights or legitimate interests with respect to the disputed domain name as the Respondent is not nor has ever been commonly known, either as a business, individual, or an organization, by the disputed domain name. Further, the Complainant believes that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the ADM Mark. To the contrary, the Respondent previously included specific links for "Archer Daniels Midland", "ADM Milling", and "ADM Grain Bids" to its website under the disputed domain name, thus seeking to mislead consumers that its site is legitimate and to improperly derive profit from click-through traffic. Further the Complainant argues that the Respondent does not use nor has it made preparations to use the disputed domain name or a name corresponding to the disputing domain name in connection with a bona fide offering of goods or services.
The Complainant claims that the facts of this matter are egregious and establish that the Respondent is using the ADM Mark and name in bad faith in an attempt to fraudulently solicit consumers to click on the links. The Respondent deliberately used the disputed domain name to mislead consumers in believing that it is the Complainant, but was also using "Archer-Daniels-Midland Company" and the name of "ADM Milling". According to the Complainant, the Respondent is clearly attempting to intentionally trade on the goodwill of the Complainant's famous name, marks, and business reputation in the agricultural and financial service industries. Furthermore, the mere fact that the disputed domain name is currently inactive does not negate the Respondent's bad faith, but enhances it. Due to the worldwide fame of the ADM Mark, it is clear for the Complainant that the Respondent was aware of the Complainant's rights in the ADM Mark prior to registering the disputed domain name. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
The Respondent did not file a response. However, as set out in paragraph 4.6 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition, ("WIPO Overview 2.0"), the consensus view of UDRP panelists is that the Respondent's default does not automatically result in a decision in favor of the Complainant. The Complainant must still establish each of the three elements required by paragraph 4(a) of the Policy. Although the Panel may draw appropriate inferences from the Respondent's default, paragraph 4 of the Policy requires the Complainant to support its assertions with actual evidence in order to succeed in these proceedings. Paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, the Panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules. The Panel finds that in this case there are no such exceptional circumstances.
Under the Policy, the Complainant must prove that:
- the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
- the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
- the disputed domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Based on the evidence presented, the Panel is satisfied that the Complainant has established registered rights to the ADM Mark. The threshold test for confusing similarity involves the comparison between the trademark and the domain name itself to determine whether the trademark would generally be recognizable within the domain name. In this case the disputed domain name comprises the ADM Mark in its entirety which is therefore identical to the ADM Mark. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is typically permissible for the Panel to ignore the generic Top-Level Domain ("gTLD"). In any event, even if the gTLD ".world" is taken into account, it is a dictionary word which does nothing to minimize the confusing similarity. On the contrary, given the sufficient evidence the Complainant has presented that it holds and uses the domain name to provide customer services and redirect customers to other websites operated by the Complainant, the disputed domain name only adds to the confusing similarity between it and the ADM Mark.
The Panel finds that the disputed domain name is identical or confusingly similar to a trademark in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled. B. Rights or Legitimate Interests
The Complainant must make a prima facie case that the Respondent lacks rights or legitimate interests in the disputed domain name, which the Respondent may rebut (see e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd.,WIPO Case No. D2003-0455).
The Complainant has contended that the Respondent is not and has never been commonly known, either as a business, an individual or an organization in connection with the disputed domain name. The Complainant has not licensed or otherwise permitted the Respondent to use the ADM Mark as a domain name or in any other way. The Respondent's Website displays a pay-per-click page and therefore the activity of the Respondent is in no way a legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Complainant has made out a prima facie case, calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the disputed domain name. The Panel accordingly finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith
To succeed under the Policy, a Complainant must show that the disputed domain name has been both registered and used in bad faith. It is a double requirement.
The Complainant has claimed that the ADM Mark is a well-known mark and used and registered by the Complainant extensively and for a substantial period of time all over the world including in China, where the Respondent appears to be based, before the disputed domain name was registered. It would be highly unlikely that the Respondent had no knowledge and actual notice of the ADM Mark when it registered the disputed domain name. Further, the Respondent's choice of registering a domain name identical to the Complainant's mark, coupled with the new gTLD ".world" may be further indicative of the Respondent's bad faith as Internet users may believe the disputed domain name to be associated with a global page of the Complainant and/or the Complainant's website at the domain name . The Panel therefore concludes that the registration of the disputed domain name was made in bad faith.
The Panel also concludes that the use of the disputed domain name is in bad faith. The disputed domain name was used in relation to a pay-per-click website with links related to "ADM Milling" and "ADM Grain Bids", where ADM Milling is a well-known business division of the Complainant. Such use is intended to capture Internet traffic from Internet users who are looking for the Complainant's products and services. The disputed domain name and the content of the Respondent's Website are set up in such a way as to confuse Internet users into believing that the Respondent is part of the Complainant's group of companies, an authorized agent or somehow connected to the Complainant when this is not the case. This shows a clear intention on the part of the Respondent to attract Internet users for commercial gain by confusing and misleading them into believing that the Respondent's Website and the associated links on display are authorized or endorsed by the Complainant. With this, the Respondent has clearly tried to trade on the goodwill of the Complainant's well-established name. The Panel finds that this is only further evidenced by the fact that the Respondent's Website is currently inactive. Finally, the Respondent has seemingly provided false contact information. According to the Complainant, an Internet search of the Respondent's address provided in the Whols report did not turn up a valid address. The Panel has no reason to doubt this result. UDRP panels have held on numerous occasions that the use in bad faith of a disputed domain name can be further evidenced when the respondent has actively provided false contact details. Given the circumstances in this case there is no reason for the Panel to believe the Respondent may have provided a wrong address by mistake.
On the basis of the evidence provided by the Complainant, and given the fact that the Respondent has not contested this evidence, in the absence of a formal response, the Panel concludes that the Respondent's registration and use of the disputed domain name are in bad faith, pursuant to paragraph 4(c) of the Policy. Accordingly, the Complaint has satisfied the third element of the UDRP. 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 be transferred to the Complainant.
Alfred Meijboom
Sole Panelist
Date: April 20, 2017
Full & Egal Universal Law Academy