WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Archer-Daniels-Midland Company v. Jim Zhu
Case No. D2013-0258
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 “USA”).
The Respondent is Jim Zhu, Shenzen, Guangdong, China.
2. The Domain Name and Registrar
The disputed domain name <admapgroup.com> (“the Disputed Domain Name”) is registered with GoDaddy.com, LLC. (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 7, 20123, 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.
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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on February 8, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was February 28, 2013. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 1, 2013.
The Center appointed Dawn Osborne as the sole panelist in this matter on March 18, 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
The Complainant is a global agribusiness and financial services company which owns registrations for ADM in many countries worldwide including USA and China with first use in the USA going back to 1923. Its Chinese registrations for ADM date back to 2002. It has several domain names which contain the ADM mark and are used to provide on line services for its customers including product trading and financial services.
The Disputed Domain Name was registered in February 2011. There are no contact details on the site, but the site imitates the look and feel of the Complainant's web site and is targetted at customers interested in commodity trading and processing, business in which the Complainant is engaged.
5. Parties’ Contentions
The Complainant's submissions can be summarised as follows:
The Complainant, founded in 1902 is a global multibillion dollar agribusiness and financial services company operating in more than 75 countries worldwide. The ADM mark has been used in the USA since 1923 and is registered in the USA for agricultural goods and services. The Complainant has a significant presence in the financial services sector and owns registrations of ADM in the USA for financial and investment services with first use recorded as 2001. It also has a US registration for ADM for information services related to its fields of business in agriculture and finance with first use recorded as 1996. It also has registrations in a number of countries worldwide for ADM including China which cover agricultural goods and services and financial services.
The Complainant's web site at “www.adm.com” allows customers to read about the history of the Complainant, identifies its products, provides news and financial services information and allows customers to conduct business with it from anywhere in the world. Although originally an agricultural processing company, the Complainant now provides a wide array of financial services including captive insurance, private equity fund investments, futures commission merchant activities and comprehensive foreign exchange services. Through its subsidiary ADM Investor Services online brokerage services are provided at “www.admis.com” and online information and trading services are provided by sister company ADM Investor Services International. Through its “www.e-adm.com” site the Complainant provides on line services which allows ordering of products, online viewing of contracts and accounts, online tracking and monitoring services, online research and credit tools and online payment of accounts.
In 2011 the Complainant's global net sales were nearly 81 billion USD, and in 2012 ADM's global sales were 89 billion USD. The Complainant began operations in China in 1994 and since then has significantly increased operations in China. ADM made a 100 million USD investment in the Agricultural Bank of China and it has offices in Beijing and Shanghai. Several of the Complainant's Chinese trade mark registrations for ADM date back to 2002 before the Respondent's registration of the Disputed Domain Name in 2011. The Complainant also owns and has actively used the “www.adm.cn” domain name since at least as early as 2003.
As a result of the promotion of the ADM mark and its extensive global use the ADM mark has built up an enhanced international reputation and goodwill. The Complainant was named the most admired food production company by Fortune Magazine for three consecutive years including 2009, 2010 and 2011.
The Disputed Domain Name is visually, phonetically and conceptually confusingly similar to the Complainant's mark. The Disputed Domain Name completely incorporates the Complainant's mark, three letters in the same order and the ADM part is the dominant part of it and will be perceived as an acronym. The “apgroup” portion of the Disputed Domain Name is used to describe the type of corporate entity and lacks any distinctiveness. The relevant public will perceive the Disputed Domain Name to be another ADM domain name owned by the Complainant like <admisi.com> or <admworld.com>.
The web site attached to the Disputed Domain Name is targeting average consumers interested in the Complainant particularly those desiring to acquire stock or commodities. The web site has been designed to obtain information from such consumers and mimics the overall look and feel of the Complainant's web site.
The Respondent has no rights or legitimate interests with respect to the Disputed Domain Name. Complainant has not permitted the Respondent to use the ADM mark or register the Disputed Domain Name. The Respondent does not appear to have been commonly known by the Disputed Domain Name. The Respondent does not use the Disputed Domain Name in connection with a bona fide offering of goods and services. The Respondent's web site appears to be an illegitimate website intended to defraud investors into believing the site is connected to the Complainant by copying the look and feel of the Complainant's site. The web site provides no contact details and is highly suspicious. Although the Disputed Domain Name was registered in 2011, it indicates a 2002 copyright notice and has no other compliance pages.
The Complainant has a significant commercial presence in China where the Respondent appears to have been based. The Disputed Domain Name was registered in 2011 long after the Complainant established rights in the ADM mark as set out above. The Respondent must have been aware of the Complainant and registered the Disputed Domain Name in bad faith.
The Respondent registered the Disputed Domain Name to attract for commercial gain Internet users seeking the Complainant or one of its sites. The use of the Disputed Domain Name and the use of ADM on the web site attached to it is aimed at creating a likelihood of confusion with the Complainant and its web sites. The Respondent is using the Disputed Domain Name in bad faith. This is demonstrated by the fact that the Respondent uses the same look and feel as “www.adm.com”, suggests it is a global company and uses a diamond shaped logo in the same place on its web site as the Complainant uses its diamond shaped logo (which is registered in many countries worldwide including the USA and China). The site states that it has “Board representation on many bodies including European Soybean Association and the Soybean Association of Asia” but these organisations do not exist.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, the Complainant must prove that:
(i) The Disputed Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) The 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.
A. Identical or confusing similarity
The Complainant has trade mark registrations consisting of or containing the ADM word mark around the world including the USA and China with first use going back to 1923 in the USA. The Disputed Domain Name is confusingly similar to the Complainant's trade mark consisting of the Complainant's ADM registered trademark and the generic text “ap group", being a generic term for a type of corporate entity. The distinctive part of the Disputed Domain Name is the ADM trademark. The addition of the non distinctive text “ap group" does nothing to prevent the confusing similarity of the Disputed Domain Name with the Complainant's ADM trade mark. As such the Panel holds that the Disputed Domain Name is confusingly similar to a trade mark in which the Complainant has rights for the purpose of the Policy.
B. Rights or Legitimate Interests of the Respondent
The Respondent has not filed a Response. It has no consent from the Complainant, has not used the Disputed Domain Name for a bona fide offering of goods and services given the confusing use, as discussed below, and is not commonly known by the Disputed Domain Name. Nor is it making non commercial fair use of it. In the circumstances of this case, and in view of the Panel’s discussion below, the Panel finds that the second element of the Policy has been established.
C. Registered and Used in Bad Faith
Paragraph 4 (b) of the Rules sets out four non exclusive criteria which shall be evidence of the registration and use of a domain name in bad faith including:
“by using the domain name [the Respondent] has intentionally attempted to attract, for commercial gain, Internet users to [its] website or other on line location, by creating a likelihood of confusion with the Complainant’s mark as to the source, affiliation or endorsement of [its] website or location or of a product or service on [its] website or location.”
The Respondent has not provided any explanation why it would be entitled to register a domain name equivalent to the Complainant's trade mark with only generic terms added for a commodity trading and processing business, the same area in which the Complainant operates. Further, in the opinion of the Panel the use made of the Disputed Domain Name is deceptive. It is not at all clear whether the site to which the Disputed Domain Name points is or is not connected with the Complainant. As such the Panel finds that the Disputed Domain Name has been used in a way likely to confuse people into believing the Disputed Domain Name was registered to or connected to the Complainant. The use of the trade marks on the site shows that the Respondent is well aware of the Complainant, its trade marks and area of business. In the absence of a Response from the Respondent, considering the well established nature of the Complainant and the material attached to the Disputed Domain Name the Panel is satisfied that the Complainant has shown that the Respondent registered the Disputed Domain Name in bad faith and is using the Disputed Domain Name to attract Internet traffic to its site for commercial gain by creating a likelihood of confusion that its website is connected to the Complainant. As such the Panel finds that the Disputed Domain Name has been registered and is being used in bad faith satisfying the third limb 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, <admapgroup.com> be transferred to the Complainant.
Date: March 31, 2013