Complainant is Archer-Daniels-Midland Company, United States of America (“United States” or “U.S.”), represented by Innis Law Group LLC, United States.
Respondent is donda west, United States.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 23, 2021. On November 24, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On November 24, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on November 25, 2021 providing the registrant and contact information disclosed by the Registrar and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on November 29, 2021.
The Center verified that the Complaint together with the amendment to 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 December 3, 2021. In accordance with the Rules, paragraph 5, the due date for Response was December 23, 2021. Respondent did not submit any
response. Accordingly, the Center notified Respondent’s default on December 27, 2021.
The Center appointed Scott R. Austin as the sole panelist in this matter on January 11, 2022. 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 BackgroundThe following facts appear from the Complaint and its Annexes.
Founded in 1902, Complainant Archer-Daniels-Midland Company, has an international presence in various industries, including in the global agricultural commodity and processing industry, providing its agricultural products and services under a trademark using its initials, ADM (the “ADM Mark”) that is now considered widely known. Although originally a food and ingredients company, ADM’s business areas now include printing and publishing; financial and business management services; fuel production, including bioethanol and biodiesel; logistics services (agricultural storage and transportation services); and research and development services. Decades ago, ADM expanded internationally and has spent considerable time, effort, and resources in creating, building, and maintaining a truly international presence and reputation under the ADM Mark and is now an international, multi-billion-dollar company with global revenues of over USD 64 billion in 2020 and over 30,000 employees serving more than 140 countries around the world.
Complainant has secured ownership of a large number of trademark registrations for the ADM Mark in the United States and across various jurisdictions worldwide for a wide range of goods and services, including but not limited to the following:
United States Trademark Registration No. 1386430, ADM, registered on March 18, 1986, for a range of agricultural and food products, as well as related services covering international classes 1, 4, 12, 16, 29, 30, 31, and 39, and claiming a priority date of January 1, 1923.
United States Trademark Registration No. 2766613, ADM, registered on September 23, 2003, for a range of investment and financial services, as well as software services covering international classes 16, 35, 36, and 42, and claiming a priority date of November 1, 2001.
ADM maintains its global presence online via its various websites, including an extensive presence online through its main website, ADM.COM (the “ADM Mark Official Website”). The Official Website allows consumers to read about the history of ADM and the progress it has made since it was founded in 1902. The website also describes ADM’s vast array of products and services, and provides consumers with the latest news on ADM.
The disputed domain name was registered on October 13, 2021, and as of the filing of the Complaint was inactive, but the record submitted provides probative evidence that on November 2, 2021, Complainant received notice that Respondent’s disputed domain name was being used in furtherance of a fraudulent email phishing scheme impersonating a trusted high level officer of Complainant, emailing employees with questions regarding banking procedures to gain acceptance of such emails from the disputed domain name as a legitimate ADM domain associated with accounts receivable/payable.
5. Parties’ Contentions A. ComplainantComplainant contends that the disputed domain name is identical or confusingly similar to Complainant’s trademark; that Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and is being used in bad faith.
B. RespondentRespondent did not reply to Complainant’s contentions.
6. Discussion and FindingsThere are no exceptional circumstances within paragraph 5(e) of the Rules to prevent this Panel from determining the present dispute based upon the Complaint (as amended), notwithstanding the failure of any person to lodge a substantive formal Response in compliance with the Rules. Under paragraph 14 of the Rules, where a party does not comply with any provision of the Rules, the Panel shall “draw such inferences therefrom as it considers appropriate”.
Where no substantive Response is filed, however, Complainant must still make out its case in all respects under paragraph 4(a) of the Policy. To determine which party prevails, the Panel must decide whether Complainant has demonstrated that all the elements listed in paragraph 4(a) of the Policy have been satisfied:
(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 has been registered and is being used in bad faith.
The Panel will address each of these requirements in turn.
The standard of proof under the Policy is often expressed as the “balance of the probabilities” or “preponderance of the evidence” standard. Under this standard, an asserting party needs to establish that it is more likely than not that the claimed fact is true. See, WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 4.2.
A. Identical or Confusingly SimilarOwnership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. WIPO Overview 3.0, section 1.2.1. Complainant has demonstrated its rights because it has shown that it is the holder of multiple valid and subsisting trademark registrations for the ADM Mark. See Advance Magazine Publishers Inc., Les Publications Conde Nast S.A. v. Voguechen,WIPO Case No. D2014-0657.
Prior UDRP panels have held “in cases where a domain name incorporates the entirety of a trademark, or where at least a dominant feature of the relevant mark is recognizable in the domain name, the domain name will normally be considered confusingly similar to that mark for purposes of UDRP standing.” See WIPO Overview 3.0, section 1.7; see also, Oki Data Americas, Inc. v. ASD, Inc.,WIPO Case No. D2001-0903.
The Panel finds here that the disputed domain name wholly incorporates Complainant’s registered ADM Mark bookended by the term “company” and the letters “acs”. These addition of these terms with the ADM Mark centered between them does not change the fact that the ADM Mark is still wholly recognizable in the disputed domain name. Complainant contends that these terms were chosen by Respondent so that the disputed domain name would be perceived as an email for accounts associated with the company and/or its accounts receivable/payable departments. Prior UDRP Panels have found similar appended terms to Complainant’s ADM Mark to refer to accounting operations or payment departments did not prevent a finding of confusing similarity. See Archer-Daniels-Midland Company v. Jim Zhu,WIPO Case No. D2013-0258 (finding addition of “ap group” to ADM Mark in did nothing to prevent confusing similarity in
While the Panel could reasonably infer that “acs” could serve as a designation for “accounts” or as an acronym for “account control system” used in business terminology, the Panel need not do so for this first element of the Policy because the ADM Mark remains clearly recognizable within the disputed domain name.
Finally, prior UDRP panels have found that the applicable Top-Level Domain (“TLD”) in a domain name (e.g., “.com”, “.club”, “.co”) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. Accordingly, the TLD “.com” does not avoid a finding of confusing similarity. See WIPO Overview 3.0, section 1.11; see also Research in Motion Limited v thamer Ahmed Alfarshooti,WIPO Case No. D2012-1146.
Complainant’s ADM Mark is readily recognizable as incorporated in its entirety into the disputed domain name and for these reasons the Panel finds the disputed domain name confusingly similar to the ADM Mark in which Complainant has rights, thus satisfying the first element of the Policy.
B. Rights or Legitimate InterestsUnder the second element of the Policy, a complainant is first required to make out a prima facie case that the respondent lacks rights or legitimate interests in the disputed domain name. If a complainant makes that showing, the burden of production on this element shifts to the respondent to come forward with relevant evidence of such rights or legitimate interests in the domain name. If the respondent fails to come forward with such evidence, a complainant is generally deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. See also, Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Respondent is in default and thus has not attempted to come forward to show any rights or legitimate interests in the disputed domain name under the Policy at paragraph 4(c).
Complainant has established, prima facie, that Respondent lacks rights or legitimate interests in the disputed domain name. First, Complainant asserts that it has not authorized, licensed, or permitted Respondent to use its ADM Mark or any confusingly similar mark in a domain name or otherwise.
Second, according to the record submitted in this case, Respondent is not commonly known by the disputed domain name. The disputed domain name was registered on October 13, 2021 and Respondent in these proceedings is “donda west”, an individual apparently located in the United States, whose name bears no resemblance to the disputed domain name. Based on these facts, combined with the lack of evidence in the record to suggest otherwise, this Panel finds that Respondent is not commonly known by the disputed domain name or any variation thereof pursuant to Policy paragraph 4(c)(ii).
It is generally regarded as prima facie evidence of no rights or legitimate interests if a complainant shows that the disputed domain name is identical or confusingly similar to a complainant’s trademark, that the respondent is not commonly known by the disputed domain name, and that a complainant has not authorized the respondent to use its mark (or an expression which is confusingly similar to its mark), whether in the disputed domain name or otherwise. See, Roust Trading Limited v. AMG LLC,WIPO Case No. D2007-1857.
The Panel notes that the present record provides no evidence to demonstrate Respondent’s intent to use or to make preparations to use the domain name in connection with a bona fide offering of goods or services. Indeed, Complainant shows that at the time of filing the Complaint the disputed domain name was inactive.
Prior UDRP panels have held that use of a disputed domain name to resolve to a blank or inactive web page does not represent a bona fide use of the disputed domain name. See Indiamart Intermesh Ltd. v. Yi Zhi Ge, Ge Yi Zhi,WIPO Case No. D2019-0930 (disputed domain name linked to inactive website; absence of use does not confer any rights or legitimate interests on the respondent); see also Fetzer Vineyards v. --,
WIPO Case No. D2019-2285.
Finally, Complainant has provided detailed explicit email evidence in the annexes attached to its Complaint that Respondent’s disputed domain name was being used in furtherance of a fraudulent email phishing scheme. The emails were configured to impersonate a trusted high level officer of Complainant, who sent questions regarding banking procedures to targeted ADM employees to gain acceptance of such emails from the disputed domain name as a legitimate ADM domain associated with accounts receivable/payable. Prior UDRP panels have held that the use of a domain name for illegal activity (e.g., phishing, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) as has been done here can never confer rights or legitimate interests on a respondent. See, WIPO Overview 3.0, section 2.13. See also, Springer Nature Limited v. Registration Private, Domains By Proxy, LLC / Collections Springer Nature,WIPO Case No. D2020-0955.
In view of the above, the Panel finds that Complainant has made out a prima facie case that Respondent has no rights or legitimate interests in the disputed domain name. Respondent has not submitted any argument or evidence to rebut Complainant’s prima facie case. The Panel concludes, therefore, that Complainant has established, by a preponderance of the evidence that Respondent lacks rights or legitimate interests in the disputed domain name and Complainant has successfully met its burden under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithComplainant contends that because Respondent has created a domain name that is confusingly similar to Complainant’s ADM Mark (and the domain name
The Panel also notes here additional factors under section 3.1.4 and its cases from which the Panel may infer bad faith registration:
(i) Complainant’s ADM Mark is well-known, distinctive, recognized as a leader in its industry in the US and in use for almost a century before the disputed domain name was registered;
(ii) Respondent’s selection of the term “acs” added to the ADM Mark to create the disputed domain name, a term which could reasonably refer to “accounts” to confuse email recipients into believing emails from the disputed domain name were legitimate, when combined with evidence of a fraudulent email scheme aimed at phishing information from employees in Complainant’s business responsible for bank account processes and procedures, evinces bad faith intent in registering the disputed domain name;
(iii) Complainant’s ADM Mark Official Website for Complainant’s products and services is accessed at “www.adm.com”, a similar string, which suggests Respondent targeted Complainant’s mark when it picked the disputed domain name, adding the term “company” and “acs” at the end to create the disputed domain name for the email purposes noted above; and
(iv) Respondent’s registration of the disputed domain name using configurations with a confusingly similar domain name to imply an affiliation with Complainant, it is inconceivable that Respondent could have registered the disputed domain name without Complainant’s ADM Mark in mind and with bona fide intentions, but instead intending to engage in per se illegitimate activity for commercial gain to foist a fraudulent email phishing scheme upon Complainant and its employees.
Given the circumstances of this case, such a showing is sufficient to establish bad faith registration. See, WIPO Overview 3.0, section 3.2.1; see also Kimberly-Clark Worldwide, Inc. v. Domains By Proxy, LLC,WIPO Case No. D2017-1474.
Finally, Complainant’s evidence submitted showing email sent from Respondent, impersonating ADM’s trusted senior officer, to an ADM employee, requesting information regarding charges for ADM to process ACH transactions, in furtherance of Respondent’s fraudulent email phishing scheme is sufficient to establish bad faith use under the Policy. See Archer-Daniels-Midland Company v. Name Redacted,WIPO Case No. D2016-1618; TVS Motor Company Ltd. v. VistaPrint Technologies Ltd.,WIPO Case No. DCO2014-0007.
For the foregoing reasons, the Panel finds that Respondent registered and used the disputed domain name in bad faith and has met its burden under the third element of the Policy.
7. DecisionFor 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
Scott R. Austin
Sole Panelist
Date: January 25, 2022