Complainant is Archer-Daniels-Midland Company, United States of America (“United States”), represented by Innis Law Group LLC, United States.
Respondent is Hei Ze Shang Zi, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2021. On June 15, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 15, 2021, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details information for the disputed domain name. 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 Respondent of the Complaint, and the proceedings commenced on June 18, 2021. In accordance with the Rules, paragraph 5, the due date for Response was July 8, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 9, 2021. The Center appointed Georges Nahitchevansky as the sole panelist in this matter on July 16, 2021. 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 Complainant, Archer-Daniels-Midland Company, is a multinational food processing and commodities trading corporation founded in 1902. Complainant is headquartered in Chicago, Illinois. Complainant uses the name and mark ADM in connection with its business and associated products and services. Complainant owns multiple trademark registrations for its ADM mark in the United States in connection with its products and services, the earliest of which issued to registration on March 18, 1986 (Registration No. 1,386,430). Complainant also owns numerous trademark registrations around the world for its ADM mark, all of which predate the registration of the disputed domain name at issue in this proceeding. Complainant owns and uses the domain name The disputed domain name was registered on July 27, 2020. The disputed domain name has been used for emails impersonating an employee of Complainant and currently resolves to a GoDaddy parked page. 5. Parties’ Contentions A. Complainant Complainant contends that its ADM name and mark is famous on account of its extensive use in commerce in various industries since 1923 and based on the many trademark registrations, Complainant has secured for its ADM mark. Complainant asserts that the disputed domain name is confusingly similar to Complainant’s ADM mark as it fully incorporates ADM as a distinct and separate element in the disputed domain name. Complainant further asserts that the addition of “quinn” (separated by a hyphen from ADM) reinforces the confusion as Complainant wholly owns a subsidiary by the name of Benson-Quinn, which is also called ADM-Benson Quinn, a company that “provides access to futures and options marks and helps customers manage the risks associated with working in agriculture.” Complainant argues that Respondent does not have rights or legitimate interests in the disputed domain name as Respondent (i) is not commonly known by the disputed domain name, (ii) has used the disputed domain name to impersonate an employee of Complainant to divert funds intended for Complainant, and (iii) has not made any preparations to use the disputed domain name with a bona fide offering of goods or services, but instead has used the disputed domain name in an attempt to divert funds meant for Complainant. In that regard, Complainant maintains that Respondent has hacked in to the email service of a customer and then sent emails using the disputed domain name in an effort to illegally divert funds intended for Complainant. Lastly, Complainant contends that Respondent has registered and used the disputed domain name in bad faith as Respondent has hacked into the email system of a customer of Complainant and used the disputed domain to impersonate an employee of Complainant for fraudulent emails in order to divert funds meant for Complainant. Complainant notes that in furtherance of Respondent’s fraudulent scheme the emails sent by Respondent also feature Complainant’s ADM logo. B. Respondent Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that: (i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; (ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and (iii) the disputed domain name was registered and is being used in bad faith. Here, although Respondent has failed to respond to the complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A Panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See section 4.3 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”); see also The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. A. Identical or Confusingly Similar Complainant has provided evidence that it extensively uses the mark and name ADM in connection with its products and services and that Complainant owns trademarks registrations for the ADM mark in multiple jurisdictions around the world, including the United States, where Respondent purports to be located. The disputed domain name fully and prominently incorporates Complainant’s ADM mark at the head of the disputed domain name. The use of “quinn” (which is also the name of a business unit of Complainant) separated from ADM by a hyphen does not distinguish the disputed domain name as Complainant’s ADM mark is clearly visible in the disputed domain name. As the threshold for the first element is primarily to establish standing, the Panel concludes that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP. Based on the evidence submitted in this proceeding, none of which is contested by Respondent, it appears that Respondent has registered the disputed domain name which prominently features the ADM mark for purposes of impersonating Complainant in order to divert funds that are meant for Complainant. In that regard, Complainant has provided evidence that Respondent has used the disputed domain name for fraudulent emails sent to a customer of Complainant that appear to originate from an employee of complainant and which include Complainant’s logo for the ADM mark along with references to Complainant and its wholly owned subsidiary “ADM-Benson Quinn.” Simply put, Respondent’s use of the disputed domain name to impersonate another for a deceitful purpose cannot in any sense of the word be seen as being legitimate or evidencing a bona fide right or legitimate interest. WIPO Overview 3.0 at section 2.13.1. Given that Complainant has established with sufficient evidence that it owns rights in the ADM mark, and given Respondent’s above noted actions and failure to appear in this proceeding, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case. C. Registered and Used in Bad Faith Given Respondent’s actions as noted above, and its failure to appear in this proceeding, it is easy to infer that Respondent’s use of the disputed domain name which is based on Complainant’s ADM mark and its wholly owned subsidiary ADM Benson-Quinn for use in an a fraudulent scheme has been done in bad faith. Given that Complainant had established rights in the ADM mark prior to when Respondent registered the disputed domain name, it is evident that Respondent opportunistically registered the disputed domain name for purposes of perpetuating a fraud at the expense of Complainant. Accordingly, the Panel finds that Complainant succeeds under this third element of the Policy. 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 Georges Nahitchevansky
Sole Panelist
Date: July 30, 2021
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