Archer Daniels Midland Company v. Domingo Lastra
Claim Number: FA2108001958673
Complainant is Archer Daniels Midland Company (“Complainant”), represented by Fernando Triana, Colombia. Respondent is Domingo Lastra (“Respondent”), Colombia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <adm-careers.com.co>, registered with CLICK PANDA SAS.
PANEL
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Alan L. Limbury, as Panelist.
Complainant submitted a Complaint to the Forum electronically on August 9, 2021. The Forum received payment on August 9, 2021. The Complaint was received in both Spanish and English.
On August 12, 2021, CLICK PANDA SAS confirmed by e-mail to the Forum that the <adm-careers.com.co> domain name is registered with CLICK PANDA SAS and that Respondent is the current registrant of the name. CLICK PANDA SAS has verified that Respondent is bound by the CLICK PANDA SAS registration agreement, which is in Spanish, and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On August 19, 2021, the Forum served the Complaint and all Annexes, including a Spanish and English language Written Notice of the Complaint, setting a deadline of September 8, 2021 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@adm-careers.com.co. Also on August 19, 2021, the Spanish and English language Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On September 14, 2021, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Alan L. Limbury as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF PROCEEDINGS
As noted, the CLICK PANDA SAS registration agreement is in Spanish. Pursuant to Rule 11(a), the language of the proceeding in relation to the <adm-careers.com.co> domain name shall be Spanish, unless otherwise determined by the Panel, having regard to the circumstances of the proceeding.
Although Complainant requests that the proceeding be conducted in Spanish, Complainant filed its amended complaint in both Spanish and English, the latter being in response to a request from the Forum. Hence the Panel determines that the language requirement has been satisfied through the Spanish language Complaint and Commencement Notification. The Panel notes that the domain name is in English and, in the absence of any Response, concludes that Respondent is likely to be proficient in English and that there would be no undue prejudice to Respondent if English, the language of the Panelist, were the language of the proceeding.
Accordingly, pursuant to Rule 11(a), the Panel determines that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant is a world leader in human and animal nutrition. It originates and processes agricultural products. Complainant has rights in the ADM mark through registrations with the United States Patent and Trademark Office (“USPTO”). Respondent’s <adm-careers.com.co> domain name is identical or confusingly similar to Complainant’s mark.
Respondent lacks rights and legitimate interests in the <adm-careers.com.co> domain name. Respondent is not commonly known by the domain name, nor has Complainant authorized or licensed Respondent to use its ADM mark. Respondent does not use the domain name for any bona fide offering of goods or services, nor any legitimate noncommercial or fair use, but instead passes itself off as Complainant in emails and inactively holds the domain name’s resolving website.
Respondent registered the <adm-careers.com.co> domain name in bad faith with actual knowledge of Complainant’s rights in the ADM mark and uses the domain name in bad faith to disrupt Complainant’s business for commercial gain by passing itself off as Complainant in emails. Respondent has exhibited a pattern of bad faith registration and use. Respondent also provided false WHOIS information by registering the domain name in the name of Complainant’s President for Latin America.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant has established all the elements entitling it to relief.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations set forth in a complaint; however, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. See WIPO Jurisprudential Overview 3.0 at ¶ 4.3; see also eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) (“Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint”).
Complainant has shown that it has rights in the ADM mark through several registrations with the USPTO (e.g. Reg. 1,386,430, registered March 18, 1986). The Panel finds Respondent’s <adm-careers.com.co> domain name to be confusingly similar to Complainant’s mark as it incorporates the mark in its entirety, merely adding a hyphen and the generic word “careers”, which do not distinguish the domain name from the mark, and the inconsequential “.com” gTLD and “.co” ccTLD, which may be ignored.
Complainant has established this element.
(i) before any notice to Respondent of the dispute, the use by Respondent 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) Respondent (as an individual, business or other organization) has been commonly known by the domain name, even if Respondent has acquired no trademark or service mark rights; or
(iii) Respondent is making a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert customers or to tarnish the trademark or service mark at issue.
The <adm-careers.com.co> domain name was registered on Oct. 26, 2020 in the name of Complainant’s President for Latin America, many years after Complainant has shown that its ADM mark had become very well known. It has been used to send emails in the name of Complainant’s President for Latin America, making false job offers and seeking personal information, while displaying the address of Complainant’s genuine website at “www.adm.com”.
These circumstances, together with Complainant’s assertions, are sufficient to constitute a prima facie showing of absence of rights or legitimate interests in respect of the domain name on the part of Respondent. The evidentiary burden therefore shifts to Respondent to show that it does have rights or legitimate interests in the <adm-careers.com.co> domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014). Respondent has made no attempt to do so.
The Panel finds that Respondent has no rights or legitimate interests in respect of the domain name.
Complainant has established this element.
The circumstances set out above in relation to the second element satisfy the Panel that Respondent was fully aware of Complainant’s well-known ADM mark when Respondent registered the <adm-careers.com.co> domain name and that Respondent registered and has used the domain name in bad faith by impersonating Complainant in fake job emails and deceiving Internet users for the purpose of fraudulently acquiring personal information.
Complainant has established this element.
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <adm-careers.com.co> domain name be TRANSFERRED from Respondent to Complainant.
Alan L. Limbury, Panelist
Dated: September 15, 2021
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