The Complainant is Archer-Daniels-Midland Company of Decatur, Illinois, United States of America (“United States or U.S.”), represented by Innis Law Group LLC, United States.
The Respondent is Li Qiang Li, Li Qiang of Xiamen, Fujian, China.
The disputed domain name <asiaadmis.com> is registered with West263 International Limited (the “Registrar”).
The Complaint in English was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 29, 2016. On July 29, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On August 3, 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 August 8, 2016, the Center sent an email communication to the Parties in both Chinese and English regarding the language of the proceeding. On August 10, 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 in Chinese and English of the Complaint, and the proceedings commenced on August 15, 2016. In accordance with the Rules, paragraph 5, the due date for Response was September 4, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on September 5, 2016.
The Center appointed Sok Ling MOI as the sole panelist in this matter on September 12, 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.
The Complainant is a company incorporated in the State of Illinois in the United States. Originally founded in 1902 as a food and ingredients company, the Complainant and its group of companies is now an international multibillion dollar agribusiness and financial and brokerage services company with over 30,000 employees and operations in more than 75 countries around the world.
The Complainant provides financial services and business management services through its subsidiaries, ADM Investor Services, Inc. (“ADMIS”) and ADMIS Hong Kong Limited (“ADMIS HK”). ADMIS, located in Chicago, Illinois, United States, is a market leader in the futures brokerage industry and has provided futures brokerage services to its global clients for over 40 years. It has offices and branches all over the world, including trading centers in Hong Kong, London, and New York. ADMIS HK, located in Hong Kong, China, has provided global futures and options trading services to clients in the Asia Pacific region for almost 20 years.
The ADM mark was adopted and has been continually used by the Complainant in the United States since at least as early as 1923 in connection with numerous products and services. The Complainant’s use of the ADM mark expanded internationally from at least as early as the 1970s. The Complainant began operations in China in 1994.
The Complainant is the owner of numerous registrations throughout the world for the word, stylised word and device marks ADM (the “Trade Mark(s)”), including U.S. registration No. 2,307,492 for ADM in Class 36 (registered on January 11, 2000) and China registration No. 3013667 for ADM in Class 36 (registered on April 14, 2003). The earliest registration (U.S. registration No. 1,386,430 for ADM in Classes 1, 4, 12, 16, 29, 30, 31, 33 and 39) dates back to 1986.
The Complainant maintains an extensive presence online through its main website, “www.adm.com”. ADMIS and ADMIS HK also use the Trade Marks in relation to online futures brokerage services provided via their “www.admis.com” and “www.admis.com.hk” websites (the “Complainant’s Websites”).
The disputed domain name <asiaadmis.com> was registered by the Respondent on December 10, 2015, long after the Complainant’s first use and registration of its Trade Marks. The disputed domain name previously resolved to a website allegedly operated by “ADM Investor Services, Inc.” and which reproduced the Complainant’s Trade Marks, offering financial and investment services similar to those offered by the Complainant under the Trade Marks. As at the date of this decision, the disputed domain name does not resolve to any active website.
The Complainant contends that the disputed domain name is confusingly similar or identical to the Trade Marks, the Respondent has no rights or legitimate interests in respect of the disputed domain name, and the disputed domain name was registered and is being used in bad faith.
The Respondent did not reply to the Complainant’s contentions.
Pursuant to paragraph 11(a) of the Rules, 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.
Paragraph 10(b) and (c) of the Rules requires the Panel to ensure that the proceeding takes place with due expedition and that the parties are treated fairly and given a fair opportunity to present their respective case.
The language of the Registration Agreement for the disputed domain name is Chinese. From the evidence on record, no agreement appears to have been entered into between the Complainant and the Respondent regarding the language issue. The Complainant filed its Complaint in English and has requested that English be the language of the proceeding.
On the record, the Respondent appears to be a Chinese individual and is thus presumably not a native English speaker, but the Panel finds persuasive evidence in the present proceeding to suggest that the Respondent has sufficient knowledge of English. In particular, the Panel notes that:
(a) the disputed domain name is registered in Latin characters, rather than Chinese script; and
(b) the disputed domain name resolves to a website which has some contents (namely, the web banners) in English.
Additionally, the Panel notes that:
(a) the Center has notified the Respondent of the proceeding in both Chinese and English;
(b) the Center informed the Respondent that it would accept a Response in either English or Chinese; and
(c) the Respondent has been given the opportunity to present its case in this proceeding and to respond to the issue of the language of the proceeding but has chosen not to do so.
Considering the above circumstances, the Panel finds the choice of English as the language of the present proceeding is fair to both Parties and is not prejudicial to either one of the Parties in its ability to articulate the arguments for this case. To require the Complaint to be translated into Chinese would in the circumstances of this case cause an unnecessary cost burden to the Complainant and unfairly disadvantage the Complainant. The proceeding would be unnecessarily delayed.
Having considered all the matters above, the Panel determines under paragraph 11(a) of the Rules that (i) it shall accept the Complaint and all supporting materials as filed in English; and (ii) English shall be the language of the proceeding and the decision will be rendered in English.
Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following three elements to obtain an order for the disputed domain name to be transferred:
(i) the disputed domain name registered by the Respondent is identical or confusingly similar to a trade mark or service mark in which the Complainant has rights;
(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.
On the basis of the evidence introduced by the Complainant, the Panel concludes as follows:
The Panel accepts that the Complainant has rights in the Trade Marks acquired through use and registration.
The disputed domain name incorporates the Complainant’s Trade Mark ADM in its entirety. Also, the disputed domain name is almost identical to the acronym “ADMIS” used by the Complainant for its futures brokerage business, save for the addition of the word “asia”. The addition of the word “asia” does not serve to sufficiently distinguish or differentiate the disputed domain name from the Complainant’s Trade Mark and business name; in fact, it increases the likelihood of confusion as the public may think the disputed domain name is owned and controlled by the Complainant and used to promote its futures brokerage business in Asia. The addition of the generic Top-Level-Domain (“gTLD”) “.com” does not impact on the analysis of whether the disputed domain name is identical or confusingly similar to the Complainant’s Trade Mark.
Consequently, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s Trade Mark.
Accordingly, the Complainant has satisfied the requirements of the first element under paragraph 4(a) of the Policy.
Under paragraph 4(a)(ii) of the Policy, the Complainant bears the burden of proving that the Respondent lacks rights or legitimate interests in the disputed domain name. However, once the Complainant makes a prima facie showing under paragraph 4(a)(ii) of the Policy, the burden of production shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name by demonstrating any of the following, without limitation, under paragraph 4(c) of the Policy:
(i) before any notice to it 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 has been commonly known by the disputed domain name, even if it has acquired no trade mark 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 trade mark or service mark at issue.
See Taylor Wimpey PLC, Taylor Wimpey Holdings Limited v. honghao Internet foshan co, ltd, WIPO Case No. D2013-0974.
The Complainant has clearly established that the Respondent is not in any way affiliated with the Complainant or otherwise authorized or licensed to use the Trade Marks or register any domain name incorporating the same. There is also no evidence suggesting that the Respondent is commonly known by the disputed domain name or that the Respondent has any rights in the name “ADM” or “ADMIS”.
The Panel notes that the Respondent is using the disputed domain name to publish a website allegedly operated by “ADM Investor Services, Inc.”, offering financial and investment services similar to those offered by the Complainant under its Trade Marks. The said website also reproduced the Complainant’s Trade Marks. It therefore appears that the Respondent has intended to, for commercial gain, mislead Internet users into believing that its website “www.asiaadmis.com” is somehow connected with the Complainant, and divert Internet users looking for the Complainant’s products and services to the Respondent’s website. The Panel does not find such use to be bona fide use of the disputed domain name for the purposes of the Policy.
The Panel is satisfied that the Complainant has made out a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The burden of production thus shifts to the Respondent to establish its rights or legitimate interests in the disputed domain name.
The Respondent has failed to respond. Since no response was filed, the prima facie case has not been rebutted. The Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name.
Accordingly, the Complainant has satisfied the requirements of the second element under paragraph 4(a) of the Policy.
Paragraph 4(b) of the Policy sets out four circumstances which, without limitation, shall be evidence of the registration and use of the disputed domain name in bad faith, namely:
(i) circumstances indicating that the Respondent has registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant who is the owner of the trade mark or service mark or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the disputed domain name; or
(ii) the Respondent has registered the disputed domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the Respondent has engaged in a pattern of such conduct; or
(iii) the Respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(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.
Given the long-standing use and reputation of the Complainant’s Trade Marks as well as the substantial Internet presence the Complainant enjoys, it is reasonable to believe that the Respondent had prior knowledge of the Complainant’s rights in the Trade Marks at the time of its registration of the disputed domain name. Registration of a domain name that incorporates the Complainant’s long-established and widely-known Trade Mark suggests opportunistic bad faith.
The Panel determines that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to source, sponsorship, affiliation, or endorsement of the Respondent’s website. As such, the Panel is satisfied that the Respondent is using the disputed domain name for mala fide purpose and illegitimate financial gain, and the Panel finds that the circumstances referred to in paragraph 4(b)(iv) of the Policy are applicable to the present case.
The Complainant, through its subsidiaries ADMIS and ADMIS HK, offers futures brokerage services via the websites “www.admis.com” and “www.admis.com.hk”. The disputed domain name is almost identical to the Complainant’s domain names, save for the addition of the prefix “asia”. The Complainant may have reason to want to use the disputed domain name to promote its futures brokerage business in Asia. It therefore appears that the Respondent has registered the disputed domain name in order to prevent the Complainant from reflecting its business name and Trade Marks in a corresponding domain name.
The Panel also notes that efforts to contact the Respondent at the physical address provided to the Registrar failed which suggests that the Respondent had provided false contact details when registering the disputed domain name.
Taking into account all the circumstances, the Panel concludes that the Respondent has registered and used the disputed domain name in bad faith.
Accordingly, the Complainant has satisfied the requirements of the third element under paragraph 4(a) of the Policy.
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 <asiaadmis.com> be transferred to the Complainant.
Sok Ling MOI
Sole Panelist
Date: September 22, 2016