WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Archer-Daniels-Midland Company v. Warren Flaherty, Allwood Design and Manufacture Ltd / Identity Protect Limited

Case No. D2015-0539

1. The Parties

Complainant is Archer-Daniels-Midland Company of Decatur, Illinois, United States of America (“United States”), represented by Innis Law Group LLC, United States.

Respondent is Warren Flaherty, Allwood Design and Manufacture Ltd of, Southsea, United Kingdom of Great Britain and Northern Ireland (“United Kingdom”) / Identity Protect Limited, of Surrey, United Kingdom.

2. The Domain Name and Registrar

The disputed domain name <adm.solutions> is registered with Mesh Digital Limited (the “Registrar”).

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 26, 2015. On March 27, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 27, 2015, 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 April 1, 2015 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 April 2, 2015

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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on April 16, 2015. In accordance with the Rules, paragraph 5(a), the due date for Response was May 6, 2015. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on May 11, 2015.

The Center appointed Pablo A. Palazzi as the sole panelist in this matter on May 27, 2015. 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

Complainant was founded in 1902 and is an international multibillion dollar agribusiness and financial services company with over 30,000 employees and operations in more than 75 countries around the world. Complainant’s global revenues were USD 89.8 billion in 2013 and USD 81.2 billion in 2014.

The ADM mark was adopted and has been continually used in the United States since as early as 1923 in connection with numerous and diverse products and services. Complainant owns many trademark registrations for the mark ADM in the United States. United States registration No. 1386430 for the ADM mark, for example, has been registered since 1986 with a first use date of 1923 in connection with a wide array goods and services in the agricultural and industrial sectors. Complainant also owns trademark registrations in the United States for the ADM mark for financial and investment services, including advisory and consulting services, trading in financial instruments, and providing online financial services. In addition, Complainant owns numerous worldwide registrations for the ADM mark, covering numerous goods and services including financial services.

Complainant uses the website “www.adm.com” as its main webpage.

At the time of filing the Complaint the disputed domain name featured various sponsored advertisements related to Complainant. Following the filing of the Complaint the website now contains photos of furniture and what seems to be a joinery services company called “Allwood Design And Manufacture Joinery Specialists” with a telephone number.

The disputed domain name was registered by Respondent on February 26, 2015.

5. Parties’ Contentions

A. Complainant

Complainant states it has trademark rights in the ADM trademark and that the disputed domain name is confusingly similar to the ADM trademark. Complainant states that the ADM trademark is well known.

With respect to the existence of rights or legitimate interests, Complainant states that it has not licensed or otherwise permitted Respondent to use its ADM trademark or to register the disputed domain name.

Complainant also states that Respondent is not and has never been commonly known by the disputed domain name either as a business, an individual, or an organization. It also states that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Finally Complainant states that Respondent does not use, nor has it made preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services. On the contrary, Complainant believes that Respondent is a cyber-squatter who has obtained the disputed domain name in bad faith for the primary purpose of soliciting the sale of the disputed domain name. Specifically, the webpage at the disputed domain name does not contain any content associated with a bona fide business but instead only serves up advertisements related to Complainant.

Complainant states that while the disputed domain name only contains advertising, it is clear that the website is designed to attract unsuspecting consumers who are looking for Complainant on the Internet and are instead led to the disputed domain name. Specifically, it contains numerous “related links”, including links for “Archer Daniels Midland” and “ADM Milling Co”. After clicking on these links, various sponsored listings/advertisements appear for job postings related to Complainant. According to the Complaint, any consumer who encounters the disputed domain name will be misled into believing that the website to which it resolves belongs to or is somehow affiliated with Complainant.

The Complaint stated that Respondent has included specific links for both “Archer Daniels Midland” and “ADM Milling Co.”, which evidences Respondent’s bad faith. Respondent is intentionally trying to create a likelihood of confusion with Complainant’s ADM Mark for commercial gain. Given Complainant’s global presence, an average consumer would easily believe that the disputed domain name is sponsored, affiliated or endorsed by Complainant, especially given the descriptive/non-distinctive Top-Level Domain (TLD) suffix “.solutions”, which could be a reference to the range of solutions provided by Complainant. Thus, the evidence indicates that Respondent has no rights to or legitimate interests in the disputed domain name.

With respect to bad faith registration and use the Complaint states the following:

- Given the worldwide fame of the ADM trademark, Respondent must have been aware of Complainant’s rights in the ADM trademark prior to registering the disputed domain name,

- Respondent registered the disputed domain name on February 26, 2015, long after Complainant established rights in and to the ADM trademark,

- Respondent is, in fact, attempting to profit and/or solicit the sale of the disputed domain since the webpage does not contain any content associated with a bona fide business but instead only serves up advertisements related to Complainant.

- The disputed domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant or to its competitors, for valuable consideration in excess of Respondent’s out-of-pocket costs directly related to the disputed domain name.

- Respondent has included on the website to which the disputed domain name resolves links for “Archer Daniels Midland” and “ADM Milling Co.” to intentionally attempt to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with Complainant’s famous ADM mark as to the source, sponsorship, affiliation, or endorsement of the website and products and services advertised on the website. Respondent’s links for “Archer Daniels Midland” and “ADM Milling Co.” and the advertisement of jobs related to the same evidences the fact that the disputed domain name is clearly aimed at creating a likelihood of confusion. Therefore, Respondent is using the disputed domain name in bad faith.

Respondent requests the transfer of the disputed domain name.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

In order to succeed in its claim, Complainant must demonstrate that the three elements enumerated in paragraph 4(a) of the Policy have been satisfied. These elements are that:

(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 to or legitimate interests in respect of the disputed domain name; and

(iii) Respondent has registered and is using the disputed domain name in bad faith.

A. Identical or Confusingly Similar

The Panel must first determine whether the disputed domain name is identical or confusingly similar to a trademark in which Complainant has rights. Complainant has demonstrated that it has trademark rights in the ADM trademark and that its trademark is well known.

The test of identity or confusing similarity under the Policy is confined to a comparison between the disputed domain name and the trademark. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”), paragraph 1.2 (“The threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion. In order to satisfy this test, the relevant trademark would generally need to be recognizable as such within the domain name…”). Complainant’s ADM trademark is completely incorporated into the disputed domain name, and recognizable as such.

The addition of the “.solutions” TLD only serves to reinforce the confusing similarity given Complainant’s activities and the generic meaning of the “.solutions” TLD.

Accordingly, the Panel concludes that the disputed domain name is confusingly similar to Complainant’s ADM trademark.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for Respondent to demonstrate that it has rights to, or legitimate interests in, the disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy. Those circumstances are:

(i) Before any notice to Respondent of the dispute, use by Respondent of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or

(ii) Where Respondent as an individual, business, or other organization, has been commonly known by the disputed domain name, even if Respondent has acquired no trademark or service mark rights; or

(iii) Where Respondent is making a legitimate noncommercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

Complainant is required to make out at least a prima facie case that Respondent lacks rights or legitimate interests. Once such prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. If Respondent fails to do so, Complainant is deemed to have satisfied paragraph 4(a)(ii) of the Policy.

Respondent has defaulted and Complainant has established a prima facie case that Respondent lacks rights or legitimate interests over the disputed domain name. Thus the Panel finds that Respondent has no rights or legitimate interests in the disputed domain name.

First, Complainant has not authorized Respondent to use its ADM trademark in the disputed domain name.

Second, according to the record of the case, Respondent is not commonly known by the disputed domain name.

The disputed domain name was registered on February 26, 2015 and Respondent in these proceedings is Warren Flaherty, Allwood Design and Manufacture Ltd., a legal entity with a domicile in the United Kingdom.

The screenshots of the disputed domain name available in annex 8 of the Complaint showing a parking page with pay-per-click advertising were taken on March 3, 2015. This Panel must assume that at the time of filing the Complaint (March 26, 2015) the disputed domain name was still linked to the parking website containing sponsored links to sites with references to Complainant. The Respondent has not contested this fact, nor has it appeared in this proceeding despite being properly notified. After the filing of the Complaint, the content of the website at the disputed domain name was changed to what is described in section 4 of this decision.

It is the view of this Panel that in such a short span of time it is not possible for Respondent Allwood Design and Manufacture Ltd. (whose initials would be “ADM”) to become commonly known by the disputed domain name. Furthermore, there is no evidence that Respondent is using “adm” as its trademark or trade name.

Nor has Respondent evidenced demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services. The Panel notes that this requirement should be assessed, as Paragraph 4(c)(i) of the Policy states, “before any notice […] of the dispute”. There is no precise data on what the disputed domain name was used for prior to notice of the dispute, and the lack of response does not help shed light to this issue.

Respondent was not making a legitimate noncommercial or fair use of the disputed domain name at the time of filing the Complaint.

Finally, while this Panel notes that three-letter domain names may have a particular value and third parties may use this combination of letters for different purposes, in this case Respondent –before the filing of the complaint- has been using the disputed domain name in connection with a parking page with links to Complainant and its competitors.

Thus, in view of all of the facts and circumstances in this case, the Panel determines that Respondent has no rights or legitimate interests in the disputed domain name.

C. Registered and Used in Bad Faith

Paragraph 4(a)(iii) of the Policy provides that Complainant must prove registration and use of the disputed domain name in bad faith. Paragraph 4(b) of the Policy sets out, by way of example, the kinds of evidence that may be put forward in this regard.

Bad faith registration may be inferred from the circumstances of this case. Complainant stated that it has been in operation since 1902, it has operations in more than 75 countries around the world and that the ADM trademark is well-known. Respondent has not denied these assertions.

As to use, it was only after Complainant filed the Complaint that Respondent changed the content of the webpage that now contains what is described at section 4 of this decision.

The Policy, paragraph 4(b), gives non-exhaustive illustrations of bad faith registration and use, including the following: “(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location.”

At the time of filing the Complaint, the disputed domain name was used for commercial advertising. Even if the advertising links served up to visitors on the website associated with the disputed domain name are automated¹ Respondent remains responsible for the uses to which the disputed domain name is put.

In this case, at the time of filing the Complaint the disputed domain name featured various sponsored advertisements related to Complainant. Respondent has not rebutted Complainant’s claim that it knew of Complainant’s trademark rights and that the disputed domain name was being used for a pay-per-click page at the time of filing.

The Panel concludes that Complainant has established the third element of the UDRP.

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 disputed domain name <adm.solutions> be transferred to Complainant.

Pablo A. Palazzi
Sole Panelist
Date: June 12, 2015

¹ The several screenshots available in annex 8 of the Complaint are evidence of a parking page at the disputed domain name with pay-per-click advertising. The website included the statement “The Screenshot Listings displayed above are served automatically by a third party. Neither Parkingcrew nor the domain owner maintain any relationship with the advertiser, in case of trademark issues please contact domain name owner directly (contact information can we found in the who is).” It is the view of the Panel that this disclaimer does not have any effect on the finding of bad faith. See Villeroy & Boch AG v. Mario Pingerna, WIPO Case No. D2007-1912.