WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Archer-Daniels-Midland Company v. Contact Privacy Inc. Customer 1248875609, Contact Privacy Inc. Customer 1248875609 / Walt Dinkelacker
Case No. D2021-0296
1. The Parties
The Complainant is Archer-Daniels-Midland Company, United States of America (“United States”), represented by Innis Law Group LLC, United States.
The Respondent is Contact Privacy Inc. Customer 1248875609, Contact Privacy Inc. Customer 1248875609, Canada / Walt Dinkelacker, United States.
2. The Domain Name and Registrar
The disputed domain name <adm.run> (the “Domain Name”) is registered with Google LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 1, 2021. On February 1, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On February 1, 2021, 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 and contact information in the Complaint. The Center sent an email communication to the Complainant on February 2, 2021, 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 9, 2021.
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 February 10, 2021. In accordance with the Rules, paragraph 5, the due date for Response was March 2, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on March 3, 2021.
The Center appointed W. Scott Blackmer as the sole panelist in this matter on March 8, 2021. 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 Archer-Daniels-Midland Company, a Delaware, United States corporation widely known by its initials ADM, is a publicly traded multinational food processing conglomerate headquartered in Chicago, Illinois, United States. Founded in 1902, it has more than 30,000 employees in more than 140 countries, with 2019 revenues in excess of USD 64 billion. It operates a principal website at “www.adm.com”, as well as many other websites using the string “adm” in domain names.
The Complainant holds numerous registered trademarks consisting or, or incorporating, the ADM mark, including United States trademark registration number 1386430 (registered March 18, 1986) for the word mark ADM.
The Registrar reports that the Domain Name was created on December 11, 2020, and was registered in the name of a domain privacy service. After receiving notice of the Complaint in this proceeding, the Registrar identified the registrant as the Respondent Mr. Dinkelacker, listing no organization and showing a residential address in the State of Mississippi, United States, with an email address associated with the domain name of an architectural firm in Louisville, Kentucky, United States.
There is no evidence that the Domain Name has ever been associated with an active website. However, the record indicates that the Respondent (or someone who falsely used the Respondent’s identity to register the Domain Name) inserted himself into correspondence between the Complainant and one of its customers, using the Domain Name for fraudulent emails in an attempt to divert funds intended for the Complainant. The Complaint attaches copies of emails showing that an employee was negotiating a business transaction for the Complainant’s fertilizer business in December 2020. The Domain Name was used for emails impersonating the Complainant’s employee a few days after the Domain Name was registered, claiming that the Complainant had changed bank accounts and providing wire transfer instructions for the customer to make payment to the “new” account. The fake emails displayed the Complainant’s trademarked logo and its postal address. Fortunately, the customer reported the exchange to the Complainant.
5. Parties’ Contentions
The Complainant asserts that its ADM trademark is “fully encompassed” in the Domain Name, which the Respondent has no permission to use and in which it has no other rights or legitimate interests. The Respondent’s use of the Domain Name for a fraudulent email scheme in an attempt to divert funds from the Complainant must be considered bad faith under the Policy as in other, similar UDRP proceedings involving the Complainant. See, e.g., Archer-Daniels-Midland Company v. Soegiarto Adikoesoemo, WIPO Case No. D2016-1618; Archer-Daniels-Midland Company v. Steve Co. / Stave Co. Ltd., WIPO Case No. D2017-2110.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to divest a respondent of a domain name, a complainant must demonstrate each of the following:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
Under paragraph 15(a) of the Rules, “[a] Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
A. Identical or Confusingly Similar
The first element of a UDRP complaint “functions primarily as a standing requirement” and entails “a straightforward comparison between the complainant’s trademark and the domain name”. See WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 1.7.
The Complainant holds registered ADM trademarks. The Domain Name incorporates this mark in its entirety. As usual, the generic Top-Level Domain (“gTLD”) “.run” is disregarded as a standard registration requirement. See id. section 1.11.2.
The Panel concludes that the first Policy element is established on these facts.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy gives non-exclusive examples of instances in which the respondent may establish rights or legitimate interests in the 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) that 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 trademark or service mark at issue.
Because a respondent in a UDRP proceeding is in the best position to assert rights or legitimate interests in a domain name, it is well established that after a complainant makes a prima facie case, the burden of production on this element shifts to the respondent to come forward with relevant evidence of its rights or legitimate interests in the domain name. See WIPO Overview 3.0, section 2.1. The Complainant in this proceeding has demonstrated trademark rights, the Respondent’s lack of permission to use the Complainant’s mark, and the Respondent’s use of the Domain Name for fraudulent email. This shifts the burden to the Respondent to produce evidence of rights or legitimate interests. The Respondent has failed to do so, and the Panel finds that the Complainant prevails on the second element of the Complaint.
C. Registered and Used in Bad Faith
The Policy, paragraph 4(b), furnishes a non-exhaustive list of circumstances that “shall be evidence of the registration and use of a domain name in bad faith”. The list is expressly non-exclusive, and beyond these example of trademark abuses, panels have found that evidence of other unlawful, deceitful, or injurious acts may suffice to establish bad faith for Policy purposes, including such conduct as “phishing, identity theft, or malware distribution” (see WIPO Overview 3.0, section 3.4). This is certainly the case here, where the Respondent (or whoever effectively controls the Domain Name) has plainly used the Domain Name for fake emails displaying the Complainant’s trademarked logo and address, in an attempt to impersonate one of the Complainant’s employees and direct a customer to wire funds to a bank account that does not belong to the Complainant. As this occurred within days after the Domain Name was registered, it may safely be inferred that the Domain Name was both registered and used with bad-faith intent to defraud.
The Panel concludes that the Complainant has established the third element of the Complaint, bad faith.
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.run>, be transferred to the Complainant.
W. Scott Blackmer
Date: March 10, 2021