WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Archer-Daniels-Midland Company v. Chamiris Mantrana
Case No. D2013-0257
1. The Parties
The Complainant is Archer-Daniels-Midland Company, Decatur, Illinois, United States of America, represented by Innis Law Group LLC, United States of America.
The Respondent is Chamiris Mantrana of New Jersey, United States of America.
2. The Domain Name and Registrar
The disputed domain name <ad-m.org> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 6, 2013. On February 7, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 8, 2013, 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 the Complainant on February 8, 2013 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 February 11, 2013.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 13, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was March 5, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent of its default on March 13, 2013.
The Center appointed Dennis A. Foster as the sole panelist in this matter on March 22, 2013. 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
Founded in the United States of America in 1902, the Complainant is a world-leading company in the provision of agricultural products and financial services. It has registered its ADM trademark with numerous authorities around the globe, including with the United States Patent and Trademark Office (“USPTO”) (e.g., Registration No. 1386430; registered March, 18 1986).
The Respondent is the registered owner of the disputed domain name, <ad-m.org>, and the date the registration was created is December 26, 2012. The disputed domain name resolves to a website that is nearly identical to that owned by the Complainant, found at “www.adm.com”, except that the “Contact Us” link appears to include false information.
5. Parties’ Contentions
- The Complainant was founded in the United States of America in 1902 and has used its ADM trademark since 1923. Operating in more than 75 countries, the Complainant is a worldwide business, offering both agricultural products and financial services. The Complainant is the undisputed market leader in the global agriculture commodity and processing industry, and, among its wide array of financial services, the Complainant can claim to be a world leader in the futures brokerage industry.
- The Complainant’s global sales in 2012 totaled USD 89 billion, and it was named by Fortune Magazine as the world’s most admired food production company in 2009, 2010 and 2011.
- Along with spending significant sums of money to promote its ADM trademark, the Complainant has obtained registrations for that mark throughout the world, including with the USPTO. The Complainant has also registered the domain name, <adm.com>, as the primary online conduit for furthering its enterprise.
- The disputed domain name, <ad-m.org>, is visually and phonetically identical to the ADM mark, and consists of three identical letters in the same order. The inclusion of a hyphen and the “.org” suffix are insignificant distinctions that do not reduce the confusing similarity between the disputed domain name and the Complainant’s trademark.
- The Respondent has no rights or legitimate interests in the disputed domain name. The Complainant has neither licensed nor permitted the Respondent to use the ADM mark. Moreover, there is no evidence that the Respondent is commonly known by the disputed domain name, as either a business, individual or organization.
- The Respondent uses the disputed domain name to resolve to the Respondent’s website, which is a copy of the Complainant’s website. The one material difference is in the “Contact Us” link, which uses incorrect contact information in a possible attempt to fraudulently gain financial and/or investment information from potential Complainant customers. Such use is consistent with nether a bona fide offering of good or services nor legitimate noncommercial or fair use.
- The Respondent has registered and is using the disputed domain name in bad faith. Due to its worldwide fame, the Complainant’s mark must have been known to the Respondent prior to registration of the name. Moreover, the Respondent’s duplication of the Complainant’s website demonstrates beyond doubt the Respondent’s knowledge of that mark.
- The Respondent intends to reap commercial gain from creating the likelihood of confusion between the disputed domain name and the Complainant’s ADM mark and website as to the source, sponsorship, affiliation or endorsement of the Respondent’s website. Furthermore, the Respondent’s bad faith is demonstrated by its use of the false contact details that appear at its website at the disputed domain name. Said contact details may be used by the Respondent in the illegitimate solicitation of financial and/or investment clients.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Under Policy paragraphs 4(a) (i) through (iii), the Complainant may succeed in this proceeding and obtain a transfer of the disputed domain name, <ad-m.org>, if the Complainant demonstrates to the Panel’s satisfaction 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
The Complainant’s submission of evidence of its USPTO registrations for the ADM trademark satisfies the Panel that the Complainant owns sufficient rights in that mark to meet the requirements of Policy paragraph 4(a)(i). See, Space Needle LLC v. Iqbal Lalji, WIPO Case No. D2008-1883 (“The Panel finds that Complainant has established rights in the mark SPACE NEEDLE, by virtue of its registration with the United States Patent and Trademark Office”); and Paisley Park Enterprises v. James Lawson, NAF Claim No. 384834 (“Complainant established rights in the PAISLEY PARK mark by registering it with the United States Patent and Trademark Office.”).
In the Panel’s view, the disputed domain name, <ad-m.org>, is at least confusingly similar to the Complainant’s mark. The disputed domain name replicates the same three letters found in the mark and in the same order. The hyphen separating the second letter from the third is of minimal distinction. Furthermore, the addition of the generic top-level domain, “.org”, provides no relevant difference, as such suffixes are required of all domain names. See, AirTran Holdings Inc. v. Sinclare Vabalon, BHG, WIPO Case No. D2008-1165 (finding <air-tran.net> to be confusingly similar to AIRTRAN and stating, “[t]he addition of the hyphen is insignificant and…the addition of suffixes such as “.net”…is not a distinguishing factor.”); and Rotta Research Laboratorium S.p.A. & Rottapharm S.r.l. v. Jacques Stade, WIPO Case No. D2003-0532 (finding <rotta-pharm.com> to be confusingly similar to ROTTAPHARM and ROTTA PHARM).
As a result, the Panel finds that the Complainant has satisfied the first element of the Policy.
B. Rights or Legitimate Interests
The Complainant avers that it has granted no license or permission for the Respondent to use the Complainant’s trademark. Furthermore, as contended by the Complainant, there is no reason for the Panel to suspect that the Respondent, Chamiris Mantrana, or an entity that he owns, is commonly known as
“Ad-m”. Finally, the Complainant has demonstrated to the Panel’s satisfaction that the disputed domain name is confusingly similar to the Complainant’s mark. Taken together, these factors constitute a prima facie case that the Respondent possesses neither rights nor legitimate interests in the disputed domain name. It is therefore the Respondent’s obligation to come forward with specific evidence to rebut that prima facie case. See, Malayan Banking Berhad v. Beauty, Success & Truth International, WIPO Case No. D2008-1393 (“Once the Complainant has made a prima facie case, the burden shifts to the Respondent to refute the Complainant's averments and to show that it has rights or legitimate interests in the disputed domain name...”); and Hanna-Barbera Productions, Inc. v. Entertainment Commentaries, NAF Claim No. 741828 (“Before shifting the burden to Respondent, Complainant must first make a prima facie case that Respondent lacks rights and legitimate interests in the disputed domain name under Policy [paragraph] 4(a)(ii).”).
The Respondent has come forward with no evidence, so the Panel will instead examine the whole record for any plausible rebuttal material while accepting as true all of the Complainant’s reasonable contentions. See, Allianz, Compañía de Seguros y Reaseguros S.A. v. John Michael, WIPO Case No. D2009-0942 (in reference to the respondent’s failure to file a response, the panel noted, “…asserted facts that are not unreasonable will be taken as true and Respondent will be subject to the inferences that flow naturally from the information provided by the Complainant.”); and RX America, LLC. v. Matthew Smith, WIPO Case No. D2005-0540.
The Complainant contends reasonably, with supporting evidence, that the Respondent has used the disputed domain name to resolve to a website that is nearly identical to the Complainant’s website, including use of the Complainant’s trademarks and service marks. The only difference the Complainant has been able to discern is that the “Contact Us” link placed on the Respondent’s website contains contact information, including telephone numbers, unknown to the Complainant. The Complainant opines, and the Panel agrees, that the Respondent’s likely goal by such disputed domain name usage is to engage in “phishing” for personal and/or financial information from Internet users who are seeking products or services from the Complainant. The Panel believes that such usage fails to comport with either a bona fide offering of goods or service per Policy paragraph 4(c)(i), or a legitimate noncommercial or fair use per Policy paragraph 4(c)(iii). See, for example, DocuSign, Inc. v. Traffic CPMiPV, Maria Carter, WIPO Case No. D2010-0344 (“…the resulting website at the time of filing was identical to that of Complainant's website found at ‘www.docusign.com’, including the use of Complainant's stylized DOCUSIGN mark. This is not a legitimate use within the meaning of the Policy.); and National Westminster Bank plc v. tega doo c/o etehch, NAF Claim No. 1244902 (“Respondent’s disputed domain name resolves to a website that mimics Complainant’s business website in form. Respondent thereby seeks to pass itself off as Complainant, and presumably profit from this fraudulent diversion of Internet users. The Panel finds that this cannot be found as a bona fide offering of goods or services pursuant to Policy [paragraph] 4(c)(i), or a legitimate noncommercial or fair use pursuant to Policy [paragraph] 4(c)(iii)”). Consequently, the Panel determines that the record yields no concrete rebuttal evidence sufficient to negate the Complainant’s prima facie case.
As a result, the Panel finds that the Complainant has satisfied the second element of the Policy.
C. Registered and Used in Bad Faith
The Complainant has supplied the Panel with clear and convincing evidence that the Respondent has used the disputed domain name for a website whose homepage is identical to the Complainant’s website homepage found at its domain name, <adm.com>. Moreover, the Panel is persuaded by the Complainant’s submission that the Respondent has attached a false “Contact Us” page to Respondent’s homepage in order to lure Internet users into providing private information to the Respondent, i.e., to engage in “phishing”. This practice is no doubt employed by the Respondent for its commercial gain. Moreover, there is no doubt that the Respondent intended, by using an identical homepage and a domain name that is confusingly similar to the Complainant’s trademark, to create a likelihood of confusion as to the source, sponsorship, affiliation or endorsement of Respondent’s website with respect to that trademark and the Complainant’s business. Therefore, viewing “phishing” as a particularly pernicious tactic to achieve commercial gain, the Panel concludes that the Respondent has engaged in bad faith registration and use of the disputed domain name per Policy paragraph 4(b)(iv). See, Dell Inc. v. Nelson laptopshoppe d/b/a The Laptop shoppe, NAF Claim No. 1469084 (“Complainant argues that Respondent has registered the disputed domain name in hopes that consumers will provide Respondent with their personal contact details in the “Contact Us” section. Complainant contends that Respondent is using the disputed domain name to establish trust with consumers and then “phishing” personal information from them. The Panel finds that “phishing” constitutes bad faith use and registration.”); NORDSTROM, Inc. and NIHC, Inc. v. Private Registration c/o WhoisGuardService.com, NAF Claim No. 1412491 (“The Panel finds this effort to attract and confuse Internet users for Respondent’s own commercial gain, including through phishing, is bad faith registration and use under Policy [paragraph] 4(b)(iv).”); DocuSign, Inc. v. Traffic CPMiPV, Maria Carter, supra (“The Panel also finds that Respondent's use of the disputed domain name in conjunction with a website that contained, at the time of filing of the Complaint, an identical home page to that of Complainant is not only potentially in direct competition with Complainant's electronic signature services but, is likely fraudulent. Respondent's copying of Complainant's webpage indicates an intent to deceive or, at a minimum, act in bad faith with the intent for commercial gain.”); and Halifax plc v. Sontaja Sunducl, WIPO Case No. D2004-0237 (“…the availability of the online registration pages, and the apparent potential for “phishing” and obtaining information by deception, is not just evidence of bad faith but possibly suggestive of criminal activity.).
As a result, the Panel finds that the Complainant has satisfied the third element of the Policy.
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, <ad-m.org>, be transferred to the Complainant.
Dennis A. Foster
Date: April 5, 2013