The Complainant is Archer-Daniels-Midland Company, United States of America (“United States” or “USA”), represented by Beijing Zhong Lun Law Firm, China.
The Respondent is Junwei Zhong, ZhongJunwei, China.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed in English and Japanese with the WIPO Arbitration and Mediation Center (the “Center”) on December 8, 2021. On December 17, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On December 20, 2021, the Registrar transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
On December 20, 2021, the Center transmitted an email communication to the Parties in English and Japanese regarding the language of the proceeding. On December 21, 2021, the Complainant confirmed its request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding.
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 in English and Japanese of the Complaint, and the proceedings commenced on December 28, 2021. In accordance with the Rules, paragraph 5, the due date for Response was January 17, 2022. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on January 22, 2022.
The Center appointed Teruo Kato as the sole panelist in this matter on January 27, 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 BackgroundAccording to the Complainant, the Complainant is widely known by its initials, ADM, and has an international presence in various industries, including in the global agricultural commodity and processing industry and is well known for the services it provides in the grain industry.
The Complainant owns, inter alia, United States trademark ADM No. 1386430, registered on March 18, 1986, covering goods and services in classes 1, 4, 12, 16, 29, 30, 31 and 39.
The disputed domain name
The Respondent is Junwei Zhong, ZhongJunwei, whose address is given as being in China.
According to the Complainant, the Respondent is using the disputed domain name in connection with various websites, including a mirror site of a Chinese university’s official website by replacing the name of the university with “快三平台” (“fast three platform”, a lottery website), and a website displaying gaming, gambling and lottery advertisements.
The Complainant requests that the disputed domain name be transferred to the Complainant.
5. Parties’ Contentions A. ComplainantThe Complainant contends that it is the owner of various trademarks including the term “adm”.
The Complainant also contends that the disputed domain name is confusingly similar to the Complainant’s ADM trademark.
The Complainant further contends that the Respondent is not a licensee, an authorized agent of the Complainant, or in any other way authorized to use the Complainant’s trademark ADM, and that the Respondent is not commonly known by the disputed domain name as an individual, business, or other organization, and that the Respondent does not make any bona fide use or trade under the disputed domain name.
The Complainant also contends that the Respondent registered and is using the disputed domain name in bad faith.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings 6.1 Preliminary Issue: Language of the ProceedingPursuant to paragraph 11(a) of the Rules, the language of the administrative proceeding shall be the language of the Registration Agreement, subject to authority of the Panel to determine otherwise having regard to the circumstances of the administrative proceeding. The Panel notes that in the present case the Registrar has confirmed that the language of the Registration Agreement is Japanese.
The Complainant has filed the Complaint in English and Japanese, and requests that the language of the proceeding be English to “facilitate the whole proceeding”, on the ground that the Complainant is a USA company, while the Respondent is a Chinese individual, and the evidence provided by the Complainant shows that contents of the website at the disputed domain name are all in the Chinese language. On December 21, 2021, the Complainant acknowledged its request as above and confirmed that nothing further be added.
The Panel has accessed the disputed domain name by itself and has found as follows:
- When the Panel accessed the disputed domain name on January 28, 2022, it resolved to a website (“ww1.admgrain.net”) which was written largely in the Japanese language with a message in English stating “This domain name has expired and may be renewed by the owner.” as well as a disclaimer in small print that “This webpage was generated by the domain owner using Sedo Domain Parking.”
- When the Panel accessed the disputed domain name again on the same day, it resolved to another website (“ww7.admgrain.net”), which was written in the English language entirely and contained English language statements such as “This domain name has expired and may be renewed by the owner.”, “Software to Manage Remote Employees”, “Workshop Maintenance Software” and “Clothing”. The webpage contained a link to “Privacy Policy”, which lead to “Privacy Policy” at “ww7.admgrain.net/privacy”, the contents of which were written entirely in the English language.
The Panel further notes that the disputed domain name contains the term “grain”, which is an English word and is not in Japanese.
On December 20, 2021, the Respondent was invited by the Center, in both Japanese and English, to indicate any objection to the proceeding being conducted in English by December 25, 2021. The Respondent did not respond to this by the specified deadline nor later.
On December 28, 2021, the Center informed the Respondent, in both Japanese and English, that the Center has decided, under the circumstances of this case, to: “1) accept the Complaint as filed in English; 2) accept a Response in either English or Japanese; 3) appoint a Panel familiar with both languages mentioned above, if available.” Accordingly, the Panel would have accepted a Response in Japanese, but none was submitted by the Respondent.
In the circumstances, in accordance with paragraph 11(a) of the Rules, the Panel decides that English be the language of the proceeding. The Panel further finds that such determination would not cause any prejudice to either Party and would ensure that the proceeding takes place with due expedition.
6.2 Substantive Issues A. Identical or Confusingly SimilarThe Panel must determine whether (a) the Complainant has a trademark or service mark; and (b) whether the disputed domain name is identical or confusingly similar to that trademark or service mark.
The Complainant submitted evidence of various trademark registrations and the Panel is satisfied that the Complainant is the owner of various registered trademarks including the term “adm”, such as United States trademark ADM No. 1386430, registered on March 18, 1986, covering goods and services in classes 1, 4, 12, 16, 29, 30, 31 and 39.
As to the confusing similarity element for the purposes of the Policy, the Panel has proceeded to compare the disputed domain name to the trademark rights which have been proved.
Section 1.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) states that “[t]he applicable Top Level Domain (‘TLD’) in a domain name (e.g., ‘info’, ‘.com’, ‘.club’) is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test”, and the Panel finds no reason why this established practice should not be applied to the present case.
Apart from the generic Top-Level Domain (“gTLD”) “.net”, the Complainant contends that the disputed domain name contains its trademark ADM in its entirety. The Panel also notes that the disputed domain name includes the Complainant’s trademark ADM in its entirety, with the addition of the term “grain”, which signals the nature of the business conducted by the Complainant.
In this connection, the Panel notes section 1.7 of the WIPO Overview 3.0 which states that “[w]hile each case is judged on its own merits, 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.”
The Panel also notes that section 1.8 of the WIPO Overview 3.0 states that “[w]here the relevant trademark is recognizable within the disputed domain name, the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) would not prevent a finding of confusing similarity under the first element.”
In the circumstances, the Panel sees no reason why these established practices should not be applied to the present case and holds that the disputed domain name is confusingly similar to the Complainant’s trademark. Accordingly, the Panel finds that the requirement of paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate InterestsUnder paragraph 4(c) of the Policy, any of the following circumstances, if found by the Panel, may demonstrate a respondent’s rights or legitimate interests in a domain name:
(i) before any notice to it of the dispute, the respondent’s use of, or demonstrable preparations to use, the domain name or a name corresponding to the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name, even if it has acquired no trademark or service mark rights; or
(iii) the respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.
The consensus view of UDRP panels is that the burden of proof in establishing no rights or legitimate interests in respect of a domain name rests with the complainant in making out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, the burden of production shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name (see section 2.1 of the WIPO Overview 3.0).
In the present case, the Complainant contends with relevant evidence that: (i) the Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services; (ii) the Respondent has not been commonly known by the disputed domain name; and (iii) the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
The Complainant contends that the disputed domain name resolves to a mirror site of a Chinese university’s official website by replacing the name of the university with “快三平台” (“fast three platform”, a lottery website), and alleges that “when the Complainant changes the IP address by using the cell phone to visit the same website, it is redirected to another website at [ … ], which is an illegal lottery website in China. Given this, the Complainant believes that the disputed domain name is used to conduct illegal lottery business in China.” To support these allegations the Complainant submitted screenshots of the relevant webpages dated August 23, 2021.
The Panel is therefore satisfied that the Complainant has established a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name.
The Panel further notes that the use of the disputed domain name has been changed at the time of this Decision, as already stated earlier in paragraph 6.1 of this Decision. The disputed domain name appears to be capable of resolving to a number of different webpages.
By not submitting a Response, the Respondent has failed to overturn such prima facie case and has also failed to invoke any of the defenses as set out in paragraph 4(c) of the Policy.
Moreover, the composition of the disputed domain name, which incorporates the Complainant’s ADM trademark in its entirety plus the term “grain” signaling the nature of the business conducted by the Complainant, carries a risk of implied affiliation, as it effectively impersonates or suggests sponsorship or endorsement by the Complainant (see section 2.5.1 of the WIPO Overview 3.0).
Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad FaithTo fulfill the third requirement, the Complainant must prove that the disputed domain name was registered and is being used in bad faith.
In the present case, the Panel is satisfied that the Complainant and its trademark ADM have already been well established in the world, including in Japan and China, in the foods and agricultural sectors. In addition, the Panel notes that the disputed domain name incorporates the Complainant’s ADM trademark in its entirety plus the term “grain” which signals the nature of the business conducted by the Complainant. Accordingly, the Panel holds that the Respondent was most likely to have known of the Complainant, its products, and trademarks prior to registering the disputed domain name on September 23, 2020. (See section 3.2.2 of the WIPO Overview 3.0.)
In the circumstances, the Panel holds that the Respondent registered the disputed domain name in bad faith.
As to the use in bad faith, as already stated above, the disputed domain name previously resolved to various websites, including a mirror site of a Chinese university’s official website by replacing the name of the university with “快三平台” (“fast three platform”, a lottery website), and a website displaying gaming, gambling and lottery advertisements. Further, the fact that the disputed domain name appears to be linked to a number of different webpages indicate that a proportion of Internet visitors, who genuinely wish to access the Complainant’s webpages, would be inadvertently directed to other sites which are not genuinely related to the Complainant.
The Panel further notes that at the time of this Decision, the disputed domain name redirects to websites that are different from the screenshots provided by the Complainant, which may be further indication of bad faith on the Respondent.
Having considered all the evidences in front of the Panel, the Panel is satisfied that the facts of this case are in support of the Complainant’s contention of bad faith, in particular considering the widely-known nature of the Complainant’s ADM trademark and the nature of the disputed domain name, and finds no evidence to indicate otherwise and that no counter-argument has been submitted by the Respondent.
Taking all matters into careful consideration, the Panel holds that the Respondent registered and is using the disputed domain name in bad faith.
The Panel therefore concludes that the third requirement of the Policy has been met.
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
Teruo Kato
Sole Panelist
Date: February 10, 2022