Archer Daniels Midland Company v. domingo lastra
Claim Number: FA2007001905510
Complainant is Archer Daniels Midland Company (“Complainant”), United States of America (“United States”), represented by Fernando Triana, Colombia. Respondent is domingo lastra (“Respondent”), Colombia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <adm.net.co> (the “disputed domain name”), registered with CLICK PANDA SAS (the “Registrar”).
The undersigned certifies that she has acted independently and impartially and to the best of her knowledge has no known conflict in serving as Panelist in this proceeding.
Lynda M. Braun as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 22, 2020; the Forum received payment on July 22, 2020. The Complaint was submitted in both Spanish and English.
On July 30, 2020, CLICK PANDA SAS confirmed by e-mail to the Forum that the <adm.net.co> disputed domain name is registered with CLICK PANDA SAS and that Respondent is the current registrant of the name. The Registrar has verified that Respondent is bound by the CLICK PANDA SAS registration agreement 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 July 30, 2020, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 19, 2020 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.net.co. Also on July 30, 2020, the 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 August 24, 2020, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Lynda M. Braun 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 disputed domain name be transferred from Respondent to Complainant.
PRELIMINARY ISSUE: LANGUAGE OF THE PROCEEDINGS
Since the Registration Agreement is written in Spanish, the language of the proceedings should be in Spanish under the Rules. Pursuant to Rule 11(a), the Panel determines that the language requirement has been satisfied through the Spanish language Complaint and Commencement Notification, and absent a Response, the Panel finds that the remainder of the proceedings may be conducted in English.
A. Complainant
Complainant is an American global food processing and commodities trading corporation, headquartered in Chicago, Illinois. Complainant has rights in the ADM trademark based upon registration with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,386,430, registered Mar. 18, 1986) (the “ADM Mark”). The disputed domain name is identical to Complainant’s ADM Mark since it fully reproduces the ADM Mark, simply adding a combination of the “.net” generic top-level domain (“gTLD”) and the “.co” country-code top-level domain (“ccTLD”), the country-code abbreviation for Colombia.
Respondent does not have rights or legitimate interests in the <adm.net.co> disputed domain name because Respondent is not commonly known by the disputed domain name and is not authorized or licensed to use the ADM Mark. Further, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use because Respondent fails to make any active use the disputed domain name. In addition, Respondent uses the disputed domain name to impersonate Complainant through emails and fraudulent job postings.
Respondent registered and uses the <adm.net.co> disputed domain name in bad faith. Respondent disrupts Complainant’s business and attracts Internet users for commercial gain by impersonating Complainant. Furthermore, Respondent had prior knowledge of Complainant’s rights in the ADM Mark.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that Complainant has rights in the ADM Mark, the disputed domain name is identical to the ADM Mark, Respondent has no rights or legitimate interests in the disputed domain name, and the Respondent registered and is using the disputed domain name in bad faith.
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 disputed 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 disputed domain name; and
(3) the disputed 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”).
Identical and/or Confusingly Similar
The Panel finds that Complainant has rights in the ADM Mark under Policy ¶ 4(a)(i) in that Complainant owns the ADM Mark based on registration with the USPTO, Reg. No. 1,386,430, registered on Mar. 18, 1986. Registration with the USPTO is sufficient to establish rights in a trademark. See Haas Automation, Inc. v. Jim Fraser, FA 1627211 (Forum Aug. 4, 2015) (finding that Complainant’s USPTO registrations for the HAAS mark sufficiently demonstrate its rights in the mark under Policy ¶ 4(a)(i)).
The Panel further finds that the disputed domain name is identical to the ADM Mark since it incorporates the ADM Mark in its entirety, merely adding a combination of the “.net” gTLD and the “.co” ccTLD. Addition of a gTLD or ccTLD to a trademark is irrelevant in determining confusing similarity under Policy ¶ 4(a)(i). See Blue Cross and Blue Shield Association v. Shi Lei aka Shilei, FA 1784643 (Forum June 18, 2018) (“A TLD (whether a gTLD, sTLD or ccTLD) is disregarded under a Policy ¶4(a)(i) analysis because domain name syntax requires TLDs.”); see also See Dansko, LLC v. zhang wu, FA 1757745 (Forum Dec. 12, 2017) (finding the <danskoshoes.us.com> domain name to be confusingly similar to the DANSKO mark under Policy ¶ 4(a)(i), despite the addition of the “.us” ccTLD and the “.com” gTLD).
Accordingly, the Panel finds that Policy ¶ 4(a)(i) has been established by Complainant.
Rights or Legitimate Interests
The Panel finds that Respondent has no rights or legitimate interests in the disputed domain name. Under the Policy, Complainant is required to make out a prima facie case that Respondent lacks rights or legitimate interests in the disputed domain name. Once such a prima facie case is made, Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name. See Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) (“Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests”). In this case, Respondent did not carry its burden to come forward with evidence of its rights or legitimate interests in the disputed domain name as it did not respond to the Complaint, but given the facts of this case, the Panel finds that Respondent would have been hard-pressed to furnish availing arguments had it chosen to respond:
Specifically, Respondent is not commonly known by the disputed domain name, Complainant has not authorized, licensed, or otherwise permitted Respondent to use the ADM Mark and Respondent has no relationship, affiliation, connection, endorsement or association with Complainant.
Furthermore, Respondent fails to use the disputed domain name in connection with a bona fide offering of goods or services, or in connection with a legitimate noncommercial or fair use because Respondent fails to make active use of the disputed domain name. Failure to actively use a domain name does not constitute a bona fide offering of goods or services or a legitimate noncommercial or fair use pursuant to Policy ¶¶ 4(c)(i) or (iii). See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Here, Complainant provides a screenshot of the disputed domain name and notes that it is inactive.
In addition, Respondent does not have rights or legitimate interests in the disputed domain name because Respondent uses the disputed domain name to impersonate Complainant through emails and fraudulent job postings. Use of an email address associated with a disputed domain name to pass off as a complainant in furtherance of a fraudulent scheme is not indicative of rights or legitimate interests. See Microsoft Corporation v. Terrence Green / Whois Agent / Whois Privacy Protection Service, Inc., FA 1661030 (Forum Apr. 4, 2016) (finding the respondent’s use of the disputed domain names to send fraudulent emails purportedly from agents of complainant to be neither a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii)).
Accordingly, the Panel finds that Policy ¶ 4(a)(ii) has been established by Complainant.
Registration and Use in Bad Faith
The Panel concludes that Respondent registered and is using the disputed domain name in bad faith as set forth below.
Respondent registered and is using the disputed domain name in bad faith because Respondent impersonates Complainant through fraudulent email and job postings. Use of a disputed domain name to pass off as a complainant may be evidence of bad faith disruption of business under Policy ¶ 4(b)(iii) and bad faith attraction for commercial gain under Policy ¶ 4(b)(iv). See Abbvie, Inc. v. James Bulow, FA 1701075 (Forum Nov. 30, 2016) (“Respondent uses the <abbuie.com> domain name to impersonate Complainant’s CEO. Such use is undeniably disruptive to Complainant’s business and demonstrates bad faith pursuant to Policy ¶4(b)(iii), and/or Policy ¶4(b)(iv)”).
Moreover, the Panel also concludes that Respondent registered and is using the disputed domain name because Respondent had actual knowledge of Complainant’s rights in the ADM Mark as well as actual knowledge of Complainant’s business. This is true since Respondent’s false job offers reference Complainant’s business and literally reproduce the content of Complainant’s legitimate website. Actual knowledge demonstrates bad faith registration and use and is evident when a respondent uses a complainant’s mark to pass itself off as the complainant under Policy ¶4(a)(iii). See Spectrum Brands, Inc. v. Guo Li Bo, FA 1760233 (Forum January 5, 2018) (“[T]he fact Respondent registered a domain name that looked identical to the SPECTRUM BRANDS mark and used that as an email address to pass itself off as Complainant shows that Respondent knew of Complainant and its trademark rights at the time of registration.”).
Accordingly, the Panel finds that Policy ¶ 4(a)(iii) has been established by 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.net.co> disputed domain name be TRANSFERRED from Respondent to Complainant.
Lynda M. Braun, Panelist
Dated: August 4, 2020
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