WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Archer-Daniels-Midland Company v. Mo Ban Lin Shi, Cheng Du Xi Wei Shu Ma Ke Ji You Xian Gong Si / Huang Xin

Case No. D2016-2068

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 Mo Ban Lin Shi, Cheng Du Xi Wei Shu Ma Ke Ji You Xian Gong Si of Chengdu, Sichuan, China / Huang Xin of Nanping, Fujian, China.

2. The Domain Name and Registrar

The disputed domain name <admforex.com> is registered with West263 International Limited (the “Registrar”).

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on October 11, 2016. On October 11, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On October 13, 2016, 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 the Complainant on October 17, 2016 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 amendment to the Complaint on October 20, 2016.

The Center transmitted an email to the Parties in English and Chinese regarding the language of the proceeding on October 14, 2016. On October 17, 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 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 the Respondent of the Complaint in English and Chinese, and the proceedings commenced on October 24, 2016. In accordance with the Rules, paragraph 5, the due date for Response was November 13, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 14, 2016.

The Center appointed Matthew Kennedy as the sole panelist in this matter on November 21, 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 is an agribusiness and financial and brokerage services company with operations in many countries, including China. The Complainant owns multiple trademark registrations for ADM, including United States trademark registration no. 2,307,492, registered on January 11, 2000 with a claim of first use in 1996, and specifying information services in the field of finance rendered by means of a global computer information network in class 36; and Chinese trademark registration no. 3013667, registered on April 14, 2003, specifying financial services in class 36. Those trademark registrations remain current. The Complainant operates a website at the address “www.adm.com” where it provides information about itself and conducts business with its customers. The Complainant has a wholly owned subsidiary named ADM Investor Services, Inc. (“ADMIS”) which operates a website at the address “www.admis.com”.

The Respondent Mo Ban Lin Shi, Cheng Du Xi Wei Shu Ma Ke Ji You Xian Gong Si is the Registrar’s privacy service while the Respondent Huang Xin is the underlying registrant of the disputed domain name. They are referred to below collectively as “the Respondent”. Due to the fact that Huang Xin’s contact information in the Registrar’s WhoIs database is incomplete or false, the courier was unable to deliver the hard copy of the Written Notice to him.

The disputed domain name was created on July 21, 2016. It resolves to a website in Chinese that purports to be the website of ADMIS. The website has a banner that displays the Complainant’s ADM logo and the ADMIS company name. The website presents information on ADMIS as if ADMIS were the registrant of the website. The website provides foreign exchange and other financial information and invites Internet users to register.

5. Parties’ Contentions

A. Complainant

The disputed domain name is confusingly similar to the Complainant’s ADM trademark. The disputed domain name completely incorporates the ADM trademark. The ADM trademark is the most prominent portion of the disputed domain name. The inclusion of “forex” increases the confusing similarity because it refers to the foreign exchange market and the Complainant specializes in forex trading.

The Respondent has no rights or legitimate interests in the disputed domain name. The Respondent is not an authorized or licensed broker of the Complainant. The Complainant has not licensed or otherwise permitted the Respondent to use its ADM trademark or to register the disputed domain name. The Respondent is not and has never been known by the disputed domain name. The Respondent is not making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain but is instead using it to misleadingly divert consumers and/or to tarnish the Complainant’s trademark.

The disputed domain name was registered and is being used in bad faith. The facts of this case are egregious. The Respondent is using the ADM mark and name in bad faith to solicit customers to open accounts and invest money in a fraudulent scheme. The Respondent claims to be one of the Complainant’s most well-known and respected divisions, ADMIS, and adopted content from the Complainant’s websites. The Respondent is clearly attempting intentionally to trade on the goodwill of the Complainant’s famous name, marks and reputation in the financial services sector wrongfully and fraudulently to solicit (sic) financial and investment services in violation of the Complainant’s prior rights.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

6.1. Language of the Proceeding

Paragraph 11(a) of the Rules provides that “unless otherwise agreed by the Parties, or specified otherwise in the Registration Agreement, the language of the administrative 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.” The Registrar confirmed that the Registration Agreement for the disputed domain name is in Chinese.

The Complainant requests that the language of the proceeding be English. Its main reasons are that the Complainant is not in a position to conduct the proceeding in Chinese without a great deal of expense and delay due to the need for translation; that the Respondent has shown an ability to communicate in English as several portions of the website are in English; and that the Respondent claims to be headquartered in the United States, where the official language is English.

Paragraph 10(b) and (c) of the Rules require the Panel to ensure that the Parties are treated with equality, that each Party is given a fair opportunity to present its case and that the administrative proceeding takes place with due expedition. Prior UDRP panels have found that the choice of language of the proceeding should not create an undue burden for the parties. See, for example, Solvay S.A. v. Hyun-Jun Shin, WIPO Case No. D2006-0593; Whirlpool Corporation, Whirlpool Properties, Inc. v. Hui’erpu (HK) electrical appliance co. ltd., WIPO Case No. D2008-0293.

The Panel observes that the Complaint in this proceeding was filed in English. The Panel notes that the disputed domain name includes an English word and that the website to which the disputed domain name resolves copies material from the Complainant’s subsidiary company’s website, which is in English, from which it can be inferred that the Respondent understands that language. Further, having received notice of the Complaint in both Chinese and English, the Respondent has expressed no interest in responding to the Complaint or otherwise participating in this proceeding. Therefore, the Panel considers that requiring the Complainant to translate the Complaint into Chinese would create an undue burden and delay.

Having considered all the circumstances above, the Panel determines under paragraph 11(a) of the Rules that the language of this proceeding is English.

6.2. Analysis and Findings

The Respondent’s failure to file a formal Response does not automatically result in a decision in favor of the Complainant. Paragraph 4(a) of the Policy provides that the Complainant must prove each of the following elements:

(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 Confusingly Similar

Based on the evidence submitted, the Panel finds that the Complainant has rights in the ADM trademark.

The disputed domain name incorporates the Complainant’s trademark in its entirety as its initial element, followed by two additional elements. One is the element “forex” which is a contraction of the words “foreign exchange” and a dictionary word itself. A dictionary word is not sufficient to dispel the confusing similarity of the disputed domain name to the Complainant’s trademark. See Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd., WIPO Case No. D2001-0110. If anything, the addition of this element increases the risk of confusing similarity because it refers to a service in connection with which the Complainant uses its trademark. The other additional element in the disputed domain name is the generic Top-Level Domain (“gTLD”) suffix “.com” but a gTLD suffix is generally disregarded in a comparison between a domain name and a trademark for the purposes of the Policy. See Lego Juris A/S v. Chen Yong, WIPO Case No. D2009-1611; Dr. Ing. h.c. F. Porsche AG v. zhanglei, WIPO Case No. D2014-0080. Consequently, the Complainant’s trademark is the dominant and only distinctive element of the disputed domain name.

Therefore, the Panel finds that the disputed domain name is confusingly similar to a trademark in which the Complainant has rights. The Complainant has satisfied the first element in paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

Paragraph 4(c) of the Policy sets out the following circumstances which, without limitation, if found by the Panel, shall demonstrate that the Respondent has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy:

(i) before any notice to [the Respondent] of the dispute, [the Respondent’s] use 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) [the Respondent] (as an individual, business, or other organization) [has] been commonly known by the [disputed] domain name, even if [the Respondent has] acquired no trademark or service mark rights; or

(iii) [the 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.

As regards the first circumstance above, the disputed domain name is being used with what purports to be a website of ADMIS offering financial services. The Panel has already found that the disputed domain name is confusingly similar to the Complainant’s ADM trademark. The Complainant informs the Panel that the Respondent is not an authorized or licensed broker of the Complainant and that the Complainant has not licensed or otherwise permitted the Respondent to use its ADM trademark or to register the disputed domain name. These facts indicate that the Respondent’s use of the disputed domain name is not in connection with a bona fide offering of goods or services covered by the first circumstance of paragraph 4(c) of the Policy.

As regards the second circumstance, the disputed domain name resolves to a website that purports to be the website of ADMIS. However, that company is in fact a subsidiary of the Complainant and not the Respondent. None of the Respondent’s names as disclosed in the Registrar’s WhoIs database is “admforex” or even “ADM”. There is no evidence indicating that the Respondent has been commonly known by the disputed domain name as envisaged by the second circumstance of paragraph 4(c) of the Policy.

As regards the third circumstance, the disputed domain name resolves to a website that offers a platform to conduct transactions. That is not a legitimate noncommercial or fair use of the disputed domain name covered by the third circumstance of paragraph 4(c) of the Policy.

In summary, the Panel considers that the Complainant has made a prima facie case that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent did not rebut that case because he did not respond to the Complaint.

Therefore, based on the record of this proceeding, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name. The Complainant has satisfied the second element in paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

Paragraph 4(b) of the Policy provides that certain circumstances, if found by the Panel to be present, shall be evidence of the registration and use of a domain name in bad faith. The fourth circumstance is as follows:

“(iv) by using the [disputed] domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.”

The Respondent registered the disputed domain name in 2016, years after the Complainant obtained its trademark registrations, including in China where the Respondent is located. The disputed domain name incorporates the Complainant’s ADM trademark in its entirety and the website to which the disputed domain name resolves displays the Complainant’s ADM trademark and logo and its subsidiary company name. The disputed domain name includes the word “forex” which is a reference to a type of service offered by the Complainant and the website offers foreign exchange services. This all indicates to the Panel that the Respondent was aware of the Complainant and its ADM trademark at the time that he registered the disputed domain name and deliberately chose to register it as part of the disputed domain name in bad faith.

The Respondent uses the disputed domain name, which is confusingly similar to the Complainant’s ADM trademark, in connection with a website that falsely purports to be an official website of ADMIS in order to offer financial services. Given this circumstance and those described in Section 6.2B above, the Panel considers that this use of the disputed domain name intentionally attempts to attract, for commercial gain, Internet users to the website by creating a likelihood of confusion with the Complainant’s trademark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or of the products on that website as described in paragraph 4(b)(iv) of the Policy.

Therefore, the Panel finds that the disputed domain name has been registered and is being used in bad faith. The Complainant has satisfied the third element in paragraph 4(a) of the Policy.

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 <admforex.com> be transferred to the Complainant.

Matthew Kennedy
Sole Panelist
Date: November 23, 2016