ARBITRATION AND MEDIATION CENTER ADMINISTRATIVE PANEL DECISION Archer-Daniels-Midland Company v. Shao Xu Feng Shao Xu Feng Case No. D2023-3145 1. The Parties The Complainant is Archer-Daniels-Midland Company, United States of America ("United States"), represented by Innis Law Group LLC, United States of America. The Respondent is Shao Xu Feng Shao Xu Feng, China. 2. The Domain Name and Registrar The disputed domain name
(the "Domain Name") is registered with Web Commerce Communications Limited dba WebNic.cc (the "Registrar"). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on July 20, 2023. On July 21, 2023, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 22, 2023, the Registrar transmitted by email to the Center its verification response, disclosing registrant and contact information for the Domain Name which differed from the named Respondent (Unknown) and contact information in the Complaint. The Center sent an email communication to the Complainant on July 24, 2023, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on July 26, 2023. The Center verified that the Complaint together with the amended 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 August 4, 2023. In accordance with the Rules, paragraph 5, the due date for Response was August 24, 2023. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on August 25, 2023. The Center appointed Nicholas Smith as the sole panelist in this matter on September 4, 2023. 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. page 2 4. Factual Background The Complainant is an American conglomerate founded in 1902. The Complainant originally specialized in food and ingredients, but now offers a diverse area of goods and services, including financial, investment, brokerage and business management services. The Complainant offers financial services through its subsidiary ADM Investor Services, Inc. which has been providing futures brokerage services for over 40 years. The Complainant promotes its operations through various means including from its website at "www.adm.com" which prominently features its company logo, being the letters ADM and a green leaf logo (the "ADM logo"). The Complainant has held a trademark registration for a trademark consisting of the letters "ADM" (the "ADM Mark") in various jurisdictions since 1986, including United States trademark registration number 1,386,430, registered on March 18, 1986, for variety of goods and services with a first use date of 1923. The Domain Name was registered on February 27, 2023. The Domain Name is presently inactive but prior to the commencement of the proceeding the Domain Name resolved to a website (the "Respondent's Website") that prominently reproduced the ADM Mark and logo. The Respondent's Website invited users to enter their telephone number and set up a password. The Respondent's Website purports to allow users to download an app to enable them to transfer money to the Respondent for the purposes of cryptocurrency trading. The Complainant has identified complaints from individuals who transferred their money to the Respondent and have subsequently been unable to withdraw their money. 5. Parties' Contentions A. Complainant The Complainant contends that it has satisfied each of the elements required under the Policy for a transfer of the Domain Name. Notably, the Complainant contends that: a) It is the owner of the ADM Mark, having registered the ADM Mark in the United States. The Domain Name is confusingly similar to the ADM Mark as it reproduces the word mark ADM in its entirety and adds the term "p2pea". b) There are no rights or legitimate interests held by the Respondent in respect of the Domain Name. The Complainant has not granted any license or authorization for the Respondent to use the ADM Mark. The Respondent is not commonly known by the ADM Mark, nor does it use the Domain Name for a bona fide purpose or legitimate noncommercial purpose. Rather, the Domain Name is used for a website impersonating the Complainant as part of a broader fraudulent scheme to encourage users to transfer money to the Respondent which it does not return, which does not provide the Respondent with rights or legitimate interests in the Domain Name. c) The Domain Name was registered and is being used in bad faith. The Domain Name is being used for a website that impersonates the Complainant in an attempt to perpetuate fraud. B. Respondent The Respondent did not reply to the Complainant's contentions. page 3 6. Discussion and Findings A. Identical or Confusingly Similar It is well accepted that the first element functions primarily as a standing requirement. The standing (or threshold) test for confusing similarity involves a reasoned but relatively straightforward comparison between the Complainant's trademark and the Domain Name. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition, ("WIPO Overview 3.0"), section 1.7. Based on the available record, the Panel finds the Complainant has shown rights in respect of a trademark or service mark for the purposes of the Policy. WIPO Overview 3.0, section 1.2.1 The Panel finds the entirety of the mark is reproduced within the Domain Name. Accordingly, the Domain Name is identical or confusingly similar to the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.7. While the addition of other terms, here "p2pea", may bear on assessment of the second and third elements, the Panel finds the addition of such term does not prevent a finding of confusing similarity between the Domain Name and the mark for the purposes of the Policy. WIPO Overview 3.0, section 1.8. The conclusion is affirmed by the use to which the Domain Name has been put. WIPO Overview 3.0, section 1.15. Based on the available record, the Panel finds the first element of the Policy has been established. B. Rights or Legitimate Interests Paragraph 4(c) of the Policy provides a list of circumstances in which the respondent may demonstrate rights or legitimate interests in a disputed domain name. While the overall burden of proof in UDRP proceedings is on the complainant, panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the often impossible task of "proving a negative", requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview 3.0, section 2.1. Having reviewed the record, the Panel finds the Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has not rebutted the Complainant's prima facie showing and has not come forward with any relevant evidence demonstrating rights or legitimate interests in the Domain Name. The Panel considers that the record of this case reflects that: Before any notice to the Respondent of the dispute, the Respondent did not use, nor has it made 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. Paragraph 4(c)(i) of the Policy, and WIPO Overview 3.0, section 2.2. The Respondent (as an individual, business, or other organization) has not been commonly known by the Domain Name. Paragraph 4(c)(ii) of the Policy, and WIPO Overview 3.0, section 2.3. The Respondent is not 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. Paragraph 4(c)(iii) of the Policy, and WIPO Overview 3.0, section 2.4. page 4 The record contains no other factors demonstrating rights or legitimate interests of the Respondent in the Domain Name. The Respondent's use of the Domain Name is in connection with a fraudulent scheme, namely for a website that reproduces the Complainant's mark and logo and purports to offer a cryptocurrency investment service but according to the Complainant (and uncontradicted by the Respondent) in fact merely encourages users to deposit money with the Respondent which they cannot later withdraw. Panels have held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) can never confer rights or legitimate interests on a respondent. WIPO Overview 3.0, section 2.13.1. Based on the available record, the Panel finds the second element of the Policy has been established. C. Registered and Used in Bad Faith The Panel notes that for the purposes of paragraph 4(a)(iii) of the Policy, paragraph 4(b) of the Policy establishes circumstances, in particular but without limitation, that if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. Panels have held that the use of a domain name for illegal activity (e.g., the sale of counterfeit goods or illegal pharmaceuticals, phishing, distributing malware, unauthorized account access/hacking, impersonation/passing off, or other types of fraud) constitutes bad faith. WIPO Overview 3.0, section 3.4. Having reviewed the record, the Panel finds the Respondent's registration and use of the Domain Name constitutes bad faith under the Policy. The Domain Name has been used for a website impersonating the Complainant from which the Respondent purports to provide cryptocurrency investment services, but actually commits a fraud on users by encouraging them to deposit money with it, which is not returned. Based on the available record, the Panel finds the third element of the Policy has been established. 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 Domain Name be transferred to the Complainant. /Nicholas Smith/ Nicholas Smith Sole Panelist Date: September 14, 2023
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