WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Archer-Daniels-Midland Company v. tao bang hua
Case No. D2016-0990
1. The Parties
The Complainant is Archer-Daniels-Midland Company of Decatur, Illinois, United States of America (“United States”), represented by Innis Law Group LLC, United States.
The Respondent is tao bang hua of Xi’an, Shanxi, China.
2. The Domain Name and Registrar
The disputed domain name <adm.help> (the “Domain Name”) is registered with Chengdu West Dimension Digital Technology Co., Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 17, 2016. On May 18, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On May 19, 2016, 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 May 23, 2016, the Center sent an email communication to the Parties in both Chinese and English regarding the language of the proceeding. On May 24, 2016, 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 of the Complaint, and the proceedings commenced on June 1, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 21, 2016. On June 2, 2016, the Respondent sent an email to the Center consenting to the transfer of the Domain Name to the Complainant. The Center then reverted this email to the Complainant, and upon the Complainant’s request, the proceeding was suspended from June 7 to August 8, 2016 to enable the Parties to reach a settlement. The Center has received the signed settlement form from the Parties in accordance with the Rules, paragraph 17(iii) and notified the Registrar of the action to be taken. Despite the Center’s notification, the Parties’ settlement was not successfully implemented. Upon the Complainant’s request, the proceeding was re-instituted on August 15, 2016. The due date for Response was extended to August 29, 2016. The Respondent did not submit any response save for its email communications on May 25, June 2 and 7, 2016. Accordingly, the Center notified the Parties that it would proceed to Panel Appointment on August 30, 2016.
The Center appointed Karen Fong as the sole panelist in this matter on September 6, 2016. 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 was founded in 1902 and is now an international multibillion dollar global agribusiness, printing and publishing and financial services company with over 30,000 employees and operations in more than 75 countries around the world. The Complainant’s global revenues were USD 89.8 billion in 2013 and USD 81.2 billion in 2014.
The Complainant uses the ADM mark in connection with its goods and services globally. The 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. The Complainant owns numerous trade mark registrations for the mark, ADM, globally. United States registration number 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. The Complainant also owns trade mark registrations for the ADM mark for financial and investment services, including advisory and consulting services, trading in financial instruments, and providing online financial services.
The Complainant has an extensive online presence with its main website connected to the domain name <adm.com>.
The Domain Name was registered by the Respondent on September 26, 2015. It was connected to a website (the “Website”) which has pay-per-click links including related links for “Archer Daniels Midland”, “ADM Milling” and “ADM Grain Bids”. When the links are clicked on, sponsored links and advertisements appear including job postings relating to the Complainant. The Website is currently inactive.
5. Parties’ Contentions
The Complainant contends that the Domain Name is identical to the trade mark ADM, the Respondent has no rights or legitimate interests with respect to the Domain Name and that the Domain Name was registered and being used in bad faith. The Complainant requests transfer of the Domain Name.
The Respondent did not reply to the Complainant’s contentions. In its communications to the Center, among other things, the Respondent agreed to transfer the Domain Name to the Complainant.
6. Discussion and Findings
According to paragraph 4(a) of the Policy, for this Complaint to succeed in relation to the Domain Name, the Complainant must prove each of the following, namely that:
(i) The Domain Name is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights; and
(ii) The Respondent has no rights or legitimate interests in respect of the Domain Name; and
(iii) The Domain Name was registered and being used in bad faith.
B. Language of the Proceeding
The Rules, paragraph 11, provide that unless otherwise agreed by the parties or specified otherwise in the registration agreement between the respondent and the registrar in relation to the disputed domain name, the language of the proceeding shall be the language of the registration agreement, subject to the authority of the Panel to determine otherwise, having regard to the circumstances of the administrative proceeding. According to the information received from the Registrar, the language of the Registration Agreement for the Domain Name is Chinese.
The Complainant submits in the Complaint and confirmed in an email of May 24, 2016 that the language of the proceeding should be English. To proceed in Chinese will impose a disproportionate burden on the Complainant in terms of additional costs, delay and inconvenience due to the need for translation. The Respondent has shown an ability to communicate in English, the advertisements found on the website are in English, the Website has an English language option, and the privacy page is in English. The above is evidence of the Respondent’s knowledge of English.
The Panel accepts the Complainant’s submissions regarding the language of the proceeding and is satisfied that the Respondent appears to understand English. The Complainant may be unduly disadvantaged by having to conduct the proceeding in Chinese. The Panel notes that in any case all of the communications from the Center to the Parties were transmitted in both Chinese and English. There is therefore no question of the Respondent not being able to understand the nature of the proceeding. The Respondent chose not to respond to the Complaint. Having considered all the circumstances of this case, the Panel determines English as the language of the proceeding.
C. Identical or Confusingly Similar
The Panel is satisfied that the Complainant has established that it has registered and unregistered rights to the ADM trade mark.
The threshold test for confusing similarity involves the comparison between the trade mark and the domain name itself to determine whether the trade mark would generally be recognizable within the domain name. In this case the Domain Name comprises the Complainant’s distinctive trade mark ADM in its entirety which is identical to the trade mark. For the purposes of assessing identity and confusing similarity under paragraph 4(a)(i) of the Policy, it is typically permissible for the Panel to ignore the generic Top-Level Domain (“gTLD”). In any event, even if the gTLD “.help” is taken into account, it is a generic word which does nothing to minimize the confusing similarity.
The Panel finds that the Domain Name is identical or confusingly similar to a trade mark in which the Complainant has rights and that the requirements of paragraph 4(a)(i) of the Policy therefore are fulfilled.
D. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, a respondent may establish rights to or legitimate interests in the disputed domain name by demonstrating any of the following:
(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 trade mark or service mark at issue.
Although the Policy addresses ways in which a respondent may demonstrate rights or legitimate interests in a disputed domain name, it is well established that, as it is put in paragraph 2.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”) that a complainant is required to make 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 appropriate allegations or evidence demonstrating rights or legitimate interests in the domain name. If the respondent does come forward with some allegations of evidence of relevant right or legitimate interest, the panel weighs all the evidence, with the burden of production always remaining on the complainant.
The Respondent is not and has never been commonly known, either as a business, an individual or an organisation as a Domain Name. The Complainant has not licensed or otherwise permitted the Respondent to use its trade mark as a Domain Name or in any other way. The Website displays a pay-per-click page and therefore the activity of the Respondent is in no way a legitimate noncommercial or fair use of the Domain Name.
The Panel finds that the Complainant has made out a prima facie case, calling for an answer from the Respondent. The Respondent has not responded and the Panel is unable to conceive of any basis upon which the Respondent could sensibly be said to have any rights or legitimate interests in respect of the Domain Name.
The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
E. Registered and Used in Bad Faith
To succeed under the Policy, a Complainant must show that the Domain Name has been both registered and used in bad faith. It is a double requirement.
The Complainant has claimed that the ADM trade mark is a well-known mark and used and registered by the Complainant extensively and for a substantial period of time all over the world including in China, where the Respondent appears to be based, before the Domain Name was registered. It would be inconceivable that the Respondent had no knowledge and actual notice of the ADM trade mark when the Domain Name was registered. Further, the Respondent’s choice of registering a domain name identical to the Complainant’s mark, coupled with the new gTLD “help” may be further indicative of the Respondent’s bad faith as Internet users may believe the Domain Name to be associated with a “help” page of the Complainant. The Panel concludes that the registration was made in bad faith.
The Panel also concludes that the use of the Domain Name is in bad faith. The Domain Name was used in relation to a pay-per-click website with links related to the Complainant. Such use is intended to capture Internet traffic from Internet users who are looking for the Complainant’s products and services. The Domain Name and the content of the Website are calculated to confuse Internet users into believing that the Respondent is part of the Complainant’s group of companies, an authorized agent or somehow connected to the Complainant when this is not the case. This shows a clear intention on the part of the Respondent to attract for commercial gain by confusing and misleading Internet users into believing that the Respondent’s website and the associated links on display are authorized or endorsed by the Complainant.
The above is clearly bad faith under paragraph 4(b)(iv) of the Policy and the Panel concludes that the Respondent’s registration and use of the Domain Name are in bad faith. Accordingly, the Complaint has satisfied the third element of the UDRP.
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, <adm.help>, be transferred to the Complainant.
Date: September 21, 2016