WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Archer-Daniels-Midland Company v. Privacy Service Provided by Withheld for Privacy ehf / Endywork Mode, Apponline
Case No. DCO2021-0082
1. The Parties
Complainant is Archer-Daniels-Midland Company, United States of America (hereinafter, “Complainant”), represented by Innis Law Group LLC, United States of America.
Respondent is Privacy Service Provided by Withheld for Privacy ehf, Iceland / Endywork Mode, Apponline, United States of America (hereinafter “Respondent”).
2. The Domain Name and Registrar
The disputed domain name <adm-usa.co> is registered with NameCheap, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 5, 2021. On October 6, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 October 7, 2021, 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 October 7, 2021 (hereinafter “the Complaint.”
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on October 8, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 28, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 29, 2021.
The Center appointed M. Scott Donahey as the sole panelist in this matter on November 5, 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
Complainant is Archer-Daniels-Midland Company, which is widely known by its initials, “Adm”. Complainant was founded in the United States of America in 1902, and currently operates internationally, with over 30,000 employees serving more than 140 countries, realizing global revenues of more than USD 64 billion in 2020. Complaint, Annex 5. Complainant is involved in various businesses, including food and ingredients, printing and publishing, financial and business management services, fuel production, agricultural storage and transportation services, and research and development. Complainant also operates over the Internet at its main web site located at <adm.com>, where it transacts business with its customers, and which site includes trading platforms for, among other services, trading in shareholdings in various businesses. Complaint, Annexes 4 and 5.
Complainant is the holder of numerous trademarks, including its ADM mark, which was in use since as early as 1923 in the United States of America (Registration No. 1,386,430), Complaint, Annex 6. Indeed, Complainant owns numerous trademarks for ADM in countries around the world. Complaint, Annex 7.
Respondent registered the disputed domain name <adm-usa.co> on August 20, 2021. Complaint, Annex 1. Currently, the disputed domain name is inactive. However, previously Respondent created email addresses as part of email addresses associated with the disputed domain name that impersonated Complainant’s employee email addresses. Respondent used such addresses to trade on the reputation and goodwill of Complainant’s ADM mark. The disputed domain name completely incorporates Complainant’s ADM mark, merely adding the abbreviated “USA” for the United States of America, separated from the ADM mark by a dash. This was registered with the country code Top-Level-Domain (“ccTLD”) “.co”, which is that of Colombia. Using the disputed domain name, Respondent has hacked into Complainant’s business and its customers’ email accounts, impersonating an ADM employee, and accessed Complainant’s Accounts Receivable email. Complaint, Annex 4.
5. Parties’ Contentions
Complainant asserts that the disputed domain name is confusingly similar to Complainant’s ADM trademark. Complainant contends that Respondent has no right or legitimate interest in respect of the disputed domain name. Complainant alleges that Respondent has registered and is using the disputed domain name in bad faith.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 15(a) of the Rules provides that “a panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules, and any rules and principles of law that it deems applicable.”
Paragraph 4(a) of the Policy directs that the complainant must prove each of the following:
(i) that the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) that the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The disputed domain name consists of complainant’s registered trademark ADM followed by a hyphen, which is in turn followed by the letters “usa”, recognized around the world as the abbreviated reference to the United States of America, where Complainant was founded and where Complainant was originally incorporated. The ccTLD “.co”is viewed as a standard registration requirement and as such is disregarded under the first element confusing similarity test. Accordingly, the Panel finds that the disputed domain name is confusingly similar to Complainant’s ADM trademark.
B. Rights or Legitimate Interests
While the overall burden of proof in UDRP proceedings is on the complainant, UDRP panels have recognized that proving a respondent lacks rights or legitimate interests in a domain name may result in the almost impossible task of “proving a negative”, requiring information that is often primarily within the knowledge or control of the respondent. As such, where a complainant makes out a prima facie case that the respondent lacks rights or legitimate interests, the burden of production on this element shifts to the respondent to come forward with relevant evidence demonstrating rights or legitimate interests in the domain name. If the respondent fails to come forward with such relevant evidence, the complainant is deemed to have satisfied the second element. WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”), section 2.1.
In the present case, Complainant alleges that Respondent has no rights or legitimate interests in respect of the disputed domain name and Respondent has failed to assert any such rights. Accordingly, the Panel finds that Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
Respondent registered and used the disputed domain name to confuse Complainant’s into believing that the emails generated and sent by Respondent were in fact originated by Complainant and its employees. Respondent used the disputed domain name to enable Respondent to hack into Complainant’s employees’ online transactions with Complainant’s customers in an attempt to gain access to customer financial information and payment for services which were intended to be, or which had been, supplied by Complainant. Accordingly, the Panel finds that Respondent has registered and is using the disputed domain name in 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 disputed domain name <adm-usa.co> be transferred to Complainant.
M. Scott Donahey
Date: November 17, 2021