WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Archer-Daniels-Midland Company v. Wang De Bing

Case No. D2017-0363

1. The Parties

The Complainant is Archer-Daniels-Midland Company of Decatur, Illinois, United States of America (“USA” or “United States”), represented by Innis Law Group LLC, USA.

The Respondent is Wang De Bing of Hangzhou, Zhejiang, China, self-represented.

2. The Domain Name and Registrar

The disputed domain name <adm.website> is registered with Alibaba Cloud Computing Ltd. d/b/a HiChina (www.net.cn) (the “Registrar”).

3. Procedural History

The Complaint was filed in English with the WIPO Arbitration and Mediation Center (the “Center”) on February 22, 2017. On February 23, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 24, 2017, 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 February 28, 2017, the Center transmitted an email in English and Chinese to the Parties regarding the language of the proceeding. The Respondent requested that Chinese be the language of the proceeding on March 1, 2017. The Complainant requested that English be the language of the proceeding on March 3, 2017.

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 in English and Chinese the Respondent of the Complaint, and the proceeding commenced on March 6, 2017. In accordance with the Rules, paragraph 5, the due date for Response was March 26, 2017. The Respondent submitted two informal responses in Chinese on February 24, 2017.

The Center appointed Jonathan Agmon as the sole panelist in this matter on March 31, 2017. 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 American based company, founded in 1902 and is now an international multi-billion-dollar company with over 30,000 employees serving customers in more than 140 countries around the world. The Complainant is one of North America’s leading millers, and has an entire subdivision of its business entitled ADM Milling.

The Complainant’s ADM Mark was adopted and has been continually used in the United States since at least as early as 1923 in connection with numerous products and services.

The Complainant is the owner of numerous trademark registrations for the mark ADM (“ADM Mark”). For example:

United States trademark registration no. 1,386,430, with the registration date of March 18, 1986;

United States trademark registration no. 2,301,968, with the registration date of December 21, 1999;

United States trademark registration no. 2,307,492, with the registration date of January 11, 2000;

Chinese trademark registration no. 17086938, with the registration date of August 21, 2016, and more.

The Complainant also maintains an extensive presence online through its main website “www.adm.com”.

The disputed domain name <adm.website> was registered on December 22, 2016.

Currently, the disputed domain name resolves to a pay-pay-click landing page displaying links associated with the Complainant, “Archer Daniels Midland Co ADM”, “ADM Milling” and “ADM Grain BIDs”.

5. Parties’ Contentions

A. Complainant

The Complainant owns numerous trademark registrations of the ADM Mark in the United States for a wide range of goods and services.

The Complainant argues that in the past year alone, the Complainant has successfully brought two UDRP actions against similar fraudulent domain names, <adm.pub> and <adm.help>. These sites had very similar content as the disputed domain name <adm.website>, as they both also displayed pay-per-click links relating to “ADM Milling”, “ADM Grain Bids”, and “Archer-Daniels-Midland Company”.

The Complainant further argues that the disputed domain name is visually confusingly similar to the ADM Mark, and that the disputed domain name completely incorporates the Complainant’s well-known ADM Mark and the portion “adm” is clearly the most prominent part of the disputed domain name.

The Complainant further argues that upon information and belief, the Respondent is not and has never been commonly known, either as a business, an individual, or an organization, by the disputed domain name.

The Complainant further argues that the Respondent is not making a legitimate noncommercial or fair use of the disputed domain name without intent for commercial gain.

The Complainant further argues that the Respondent does not use nor has he made 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.

The Complainant further argues that the Respondent has registered and is using the disputed domain name in bad faith.

The Complainant further argues that the Respondent is using the ADM Mark and disputed domain name in bad faith to fraudulently solicit consumers to click on the links on the website, and that the Respondent is clearly attempting to intentionally trade on the goodwill of the Complainant’s famous name, marks, and business reputation in the agricultural and financial services industries.

The Complainant further argues that the disputed domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant or to a competitor of the Complainant for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the disputed domain name.

The Complainant further argues that the Respondent is intentionally trying to create a likelihood of confusion with the ADM Mark for commercial gain and that this intentional design to lure consumers interested in the Complainant to the disputed domain name constitutes bad faith.

For all of the above reasons, the Complainant requests the transfer of the disputed domain name.

B. Respondent

The Respondent argues that he registered the disputed domain name to use under his own website, and adds that the meaning of the term “adm” is the transliteration into Chinese of “love of rice”.

The Respondent further argues that he never knew, never heard of what the Complainant was, and that he has nothing to do with the Complainant.

The Respondent further argues that a domain name is a domain name, and everyone has the right to register domain names for their own use, and that a domain name is not equivalent to the trademark.

The Respondent further argues that he does not intend to infringe the rights of another, and never violated the rights of the Complainant, and that he does not make any malicious use of the disputed domain name.

The Respondent further argues that the term “adm” can not only be regarded as English alphabet, it can also be the Chinese phonetic transliteration, it can also be in other foreign language letters, and is not exclusive of any company in any country, and that it is open to the world and everyone in every country has the right to use it.

The Respondent therefore requests the Complaint be denied in view of its unreasonable demands, and to ensure that he can use his legitimate rights and interests in the disputed domain name.

6. Discussion and Findings

6.1. Language of the Proceeding

Paragraph 11 of the Rules provides that:

“(a) 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 language of the Registration Agreement for the disputed domain name is Chinese, as confirmed by the Registrar in its verification email to the Center of February 24, 2017.

The Complainant requested that the language of the proceeding be English.

The Respondent requested that the language of the proceeding be Chinese.

The Panel cites the following with approval:

“Thus, the general rule is that the parties may agree on the language of the administrative proceeding. In the absence of this agreement, the language of the Registration Agreement shall dictate the language of the proceeding. However, the Panel has the discretion to decide otherwise having regard to the circumstances of the case. The Panel’s discretion must be exercised judicially in the spirit of fairness and justice to both parties taking into consideration matters such as command of the language, time and costs. It is important that the language finally decided by the Panel for the proceeding is not prejudicial to either one of the parties in his or her abilities to articulate the arguments for the case.” (Groupe Auchan v. xmxzl, WIPO Case No. DCC2006-0004).

The Panel finds that in the present case, the following should be taken into consideration upon deciding on the language of the proceeding:

(i) The disputed domain name consists of Latin letters, rather than Chinese characters;

(ii) The website under the disputed domain name is operated in English only;

(iii) The Respondent claimed he does not understand English but was able to respond to the Complaint and provided a meaning to English components of the disputed domain name;

(iv) The Complainant has no knowledge of Chinese, and in the present case, the use of a language other than English would impose a significant burden on the Complainant in view of the facts in question.

Upon considering the above, the Panel determines that English be the language of the proceeding.

6.2. Substantive Issues

A. Identical or Confusingly Similar

Paragraph 4(a)(i) of the Policy requires the Complainant to show that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.

The Complainant is the owner of numerous trademark registrations for the mark ADM. For example:

United States trademark registration no. 1,386,430, with the registration date of March 18, 1986; United States trademark registration no. 2,301,968, with the registration date of December 21, 1999; United States trademark registration no. 2,307,492, with the registration date of January 11, 2000; Chinese trademark registration no. 17086938, with the registration date of August 21, 2016, and more.

The disputed domain name <adm.website> reproduces entirely the Complainant’s ADM trademark with the generic Top-Level Domain (“gTLD”) “.website”.

The addition of the gTLD suffix “.website” does not have the capacity to distinguish the disputed domain name from the Complainant’s ADM registered trademark and are disregarded when comparing the disputed domain name with the Complaintan’s trademark. See Volkswagen AG v. Todd Garber, WIPO Case No. D2015-2175; Dassault (Groupe Industriel Marcel Dassault) v. Ma Xiaojuan, WIPO Case No. D2015-1733; 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 Panel finds that the Complainant has shown that the disputed domain name is identical to the ADM trademark in which the Complainant has rights.

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 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 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) that the Respondent has been commonly known by the disputed 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 disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trademark or service mark at issue.

In the present case, the Complainant has demonstrated prima facie that the Respondent lacks rights or legitimate interests in respect of the disputed domain name and the Respondent has failed to submit any evidence asserting such rights or legitimate interests.

The Respondent is not known by the disputed domain name. The Respondent has submitted a short bare response to the Complaint in which he argued that the disputed domain name was registered to operate a website relating to “Love of Rice”, however the Respondent did not allege nor provide any evidence to show any such use of a website under the disputed domain name. The Respondent did not provide any evidence to show preparations to use the disputed domain name in relation to his “love of rice”. The Respondent did not manage to rebut the presumption demonstrated by the Complainant that he has any rights or legitimate interests in the disputed domain name. In effect, the Respondent did not provide any evidence whatsoever aside from a reference to a wikipedia page providing certain interpretation to the ADM acronym in English.

The Panel finds that the Respondent did not manage to rebut the prima facie case made by the Complainant that it has no rights or legitimate interests in respect to the disputed domain name, and therefore the Panel finds that the Complainant has managed to establish a prima facie case in this regard, inter alia, due to the fact that the Complainant has not licensed or otherwise permitted the Respondent to use the Complainant’s trademarks or a variation thereof. The Panel further finds on balance that the Respondent is not engaged in a bona fide offering of goods or services under the disputed domain name.

Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name.

C. Registered and Used in Bad Faith

The Complainant must show that the Respondent registered and is using the disputed domain name in bad faith (Policy, paragraph 4(a)(iii)). Paragraph 4(b) of the Policy provides circumstances that may evidence bad faith under paragraph 4(a)(iii) of the Policy.

The Complainant has submitted evidence, which shows that the Respondent registered the disputed domain name long after the Complainant registered its trademark. According to the evidence filed by the Complainant, the Complainant has owned a registration for the ADM trademark since at least the year 1986. It is suggestive of the Respondent’s bad faith in these particular circumstances that the trademark, owned by the Complainant, was registered long before the registration of the disputed domain name (Sanofi-Aventis v. Abigail Wallace, WIPO Case No. D2009-0735).

As mentioned in his response, the Respondent stated he has registered the disputed domain name to operate his own site, in connection with his “love of rice”. The Respondent failed to present evidence in support of his contentions or even evidence showing any preparations to use the disputed domain name as suggested. And not only that, the Respondent is operating under the disputed domain name a pay-per-click website with sponsored links connected to the Complainant’s business. Having reviewed the evidence, the Panel rejects the Respondent’s arguments in this matter and finds that the attempt to give a meaning to support an unsupported intent by the Respondent is rejected as being unsubstantiated.

The disputed domain name leads Internet users to a pay-per-click website displaying commercial links of prima facie the Complainant’s services. From the evidence submitted by the Complainant and according to a search conducted by the Panel, it seems that the Respondent is using the disputed domain name to promote also others’ competing services. The Respondent’s use of the ADM trademark on his website is clear evidence that the Respondent has registered and is using the disputed domain name with knowledge of the Complainant and of the use the Complainant is making in its ADM well-known trademark, and indicates that the Respondent’s primary intent with respect to the disputed domain name is to trade off the value of these. The Respondent’s actions therefore constitute bad faith. See Herbalife International, Inc. v. Surinder S. Farmaha, WIPO Case No. D2005-0765, stating that “the registration of a domain name with the knowledge of the complainant’s trademark registration amounts to bad faith”. Indeed, “when a domain name is so obviously connected with a Complainant, its very use by a registrant with no connection to the Complainant suggests ‘opportunistic bad faith’” (Tata Sons Limited v. TATA Telecom Inc/Tata-telecom.com, Mr. Singh, WIPO Case No. D2009-0671).

The Panel also finds that the Respondent’s attempt to attract, for commercial gain, Internet users to his website with the intent of creating a likelihood of confusion with the Complainant’s trademarks and its affiliation falls under paragraph 4(b)(iv) of the Policy.

Based on the evidence that was presented to the Panel, including the Respondent’s unfounded answer to the Complaint and the use of the disputed domain name, the Panel draws the inference that the disputed domain name was registered and is being used in bad faith.

Accordingly, having regard to the circumstances of this particular case, the Panel finds that the Complainant has met its burden under paragraph 4(a)(iii) 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 <adm.website> be transferred to the Complainant.

Jonathan Agmon
Sole Panelist
Date: April 14, 2017