WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arla Foods amba v. Moniker Privacy Services / Janice Liburd
Case No. D2011-0492
1. The Parties
The Complainant is Arla Foods amba of Viby J, Denmark, represented by Zacco Denmark A/S, Denmark.
The Respondent is Moniker Privacy Services / Janice Liburd of Pompano Beach, Florida, United States of America and of Panama, Panama respectively.
2. The Domain Name and Registrar
The disputed domain name <arlabenefit.com> is registered with Moniker Online Services, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 16, 2011. On March 16, 2011, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On March 17, 2011, 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 March 25, 2011 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 amended Complaint on March 25, 2011.
The Center verified that the Complaint together with the amended 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on March 29, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was April 18, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 20, 2011.
The Center appointed Louis-Bernard Buchman as the sole panelist in this matter on April 28, 2011. 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.
Regarding the language of the proceeding, the Center ascertained from the Registrar that the language of the Registration Agreement is English. Accordingly, the Panel determines that pursuant to paragraph 11(a) of the Rules the language of the proceeding is English, i.e., the language of the registration agreement.
4. Factual Background
The Complainant is a co-operative owned by approximately 8,000 farmers in Denmark and Sweden. It is one of Europe’s largest dairy companies. The Complainant has registered the trademark ARLA in a very large number of countries, in connection with “foodstuffs”, and is the holder of international registration number 731917 ARLA (word mark) which covers, inter alia, the United States of America and the European Union.
In addition, the Complainant registered several domain names incorporating its ARLA trademark, including in particular, <arlabenefits.com>, which is used in connection with its employee benefits programs.
The disputed domain name created on January 19, 2011.
5. Parties’ Contentions
(i) The Complainant submits that the disputed domain name is identical or confusingly similar to the ARLA trademark insofar as the disputed domain name contains that trademark.
(ii) The Complainant contends that the Respondent has no registered trade marks or trade names corresponding to the disputed domain name nor any rights or legitimate interests in respect of the disputed domain name. The Respondent is not commonly known as “arlabenefit”, and has not used, or made any demonstrable preparations to use, the disputed domain name or corresponding name in connection with a bona fide or non-infringing offering of goods. The Complainant did not authorize or license the Respondent’s use of its ARLA and ARLA BENEFITS trademarks.
(iii) The disputed domain name <arlabenefit.com> resolves in a typical pay-per-click web site, with sponsored links.
(iv) By registering the disputed domain name, the Respondent intentionally attempts to create confusion amongst Internet users and to attract them for commercial gain to a web site. This is damaging to the Complainant as it creates the likelihood of confusion as to whether the disputed domain name resolves to a web site which is endorsed by or affiliated in some way with the Complainant. Such conduct amounts to bad faith.
(v) The Complainant further contends that the Respondent’s bad faith registration and use of the disputed domain name is established by the fact that the ARLA trademark is well known, and that it is most likely the Respondent was aware of the Complainant and of its trademarks when the Respondent registered the disputed domain name, encompassing the ARLA trademark and misspelling the Complainant’s <arlabenefits.com> domain name.
(vi) The Complainant requests that the disputed domain name be transferred to the Complainant.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
6.1 Procedural aspects
The Respondent is formally in default pursuant to paragraphs 5(e) and 14(a) of the Rules and paragraph 8(c) of the Supplemental Rules, because no Response was received from the Respondent within the time limit set by the Policy and Rules.
Under the Rules, paragraphs 5(e) and 14(a), the effect of a default by the Respondent is that the Panel shall proceed to a decision on the basis of the Complaint.
Paragraph 10(a) of the Rules gives the Panel broad discretion to conduct the proceedings and the Panel must ensure that the proceedings take place “with due expedition”.
Accordingly, in the interest of fairness and of deciding the case on the basis of the most complete available record, the Panel has undertaken some limited factual research into matters of public record insofar as it felt it needed the results of such research to reach its decision.
The Panel thus ascertained from the WIPO Center’s publicly available database of decided cases that the Complainant was a named complainant in a number of cases and that the Respondent was also a named respondent in several cases, including one recently decided case Arla Foods amba v. Janice Liburd., WIPO Case No. D2011-0493.
Under paragraph 4(a) of the Policy, it is the Complainant’s burden to establish that all three of the required criteria for a transfer of the disputed domain name or other remedy have been met.
Under paragraph 14(b) of the same Rules, the Panel is empowered to draw such inferences from the Respondent’s default as it considers appropriate under the circumstances.
In this case, the Panel finds that as a result of the default, the Respondent has failed to rebut any of the factual assertions that are made and supported by evidence submitted by the Complainant.
In particular, by defaulting and failing to respond, the Respondent has failed to offer the Panel any of the types of evidence set forth in paragraph 4(c) of the Policy from which the Panel might conclude that the Respondent has any rights or legitimate interests in the disputed domain name, such as making legitimate noncommercial or fair use of the disputed domain name.
Moreover, as discussed below, the Respondent has failed to provide any exculpatory information or reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent has acted in bad faith.
6.2 With respect to the requirements of paragraph 4(a) of the Policy
A. Identical or Confusingly Similar
In comparing the ARLA trademark to the disputed domain name, it is evident that the latter, <arlabenefit.com>, consists solely of the ARLA trademark, followed by the generic term “benefit”. The addition of generic terms does not ordinarily serve to distinguish a domain name from registered marks. See Banconsumer Service, Inc. v. Mary Langthorne, Financial Advisor, WIPO Case No. D2001-1367; Royal Bank of Canada v. RBC Bank, WIPO Case No. D2002-0672 and Allianz AG v. Marian Dinu, WIPO Case No. D2006-0318.
The Panel finds that the disputed domain name is confusingly similar to the ARLA trademark, which it incorporates in its entirety.
Thus, the Complainant has satisfied the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Although a complainant bears the ultimate burden of establishing all three elements of paragraph 4(a) of the Policy, panels have recognized that this could result in the often impossible task of proving a negative proposition, requiring information that is primarily if not exclusively within the knowledge of the respondent. Thus, the consensus view of the UDRP panels is that paragraph 4(c) of the Policy shifts the burden to the respondent to come forward with evidence of a right or legitimate interest in the domain name, once the complainant has made a prima facie showing (as it has in this case). See Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270.
As previously noted, the Respondent did not submit a Response, thus offering no reason for selecting the disputed domain name. There is no evidence that the Respondent is known by the disputed domain name or a corresponding name or uses a corresponding name in a business. The website associated with the disputed domain name is a commercial website with sponsored links, and no information is provided on what rights or legitimate interests the Respondent may have in the disputed domain name.
To counter any notion that the Respondent has such rights or legitimate interests, the Complainant has argued that the Respondent is not (i) making a bona fide use of the disputed domain name, (ii) making a fair or legitimate noncommercial use of the disputed domain name or (iii) commonly known by the disputed domain name.
The links in the Respondent’s web site establish that the disputed domain name is being used for commercial gain and that it is diverting Internet users, possibly including employees of the Complainant due to the misspelling in the disputed domain name of the Complainant’s <arlabenefits.com> domain name which they would seek to access.
In the circumstances, the Panel is satisfied that the Respondent is using the disputed domain name for commercial gain, and concludes that the Complainant has established the second requirement of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
As noted above, the Respondent has failed to provide any exculpatory information or persuasive reasoning that might have led the Panel to question the Complainant’s arguments that the Respondent acted in bad faith by (i) failing to obtain the Complainant’s authorization even though it knew or should have known of the Complainant’s rights to the ARLA trademarks; (ii) redirecting Internet traffic, intended for the Complainant for the Respondent’s commercial gain by using pay per click links, and (iii) creating confusion to the detriment of the Complainant by using a similar domain name to the Complainant’s <alrlabenefits.com> domain name.
In addition, the Panel notes a pattern of conduct by the Respondent of preventing a trademark holder from reflecting the mark in a corresponding domain name, notably by (but not limited to) registering the <arlalogon.com> domain name, which is also strongly indicative of bad faith. See Home Interiors & Gifts, Inc. v. Home Interiors, WIPO Case No. D2000-0010. Furthermore, the Panel can discern no legitimate basis for the Respondent’s use of a privacy shield service and considers this fact under the present circumstances as corroborative of bad faith. See Gaylord Entertainment Company v. Nevis Domains LLC, WIPO Case No. D2006-0696.
The Panel concludes in these circumstances that the Respondent’s registration and use of the disputed domain name indicates bad faith and that the requirement of paragraph 4(a)(iii) of the Policy is also satisfied in this case.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <arlabenefit.com> be transferred to the Complainant.
Dated: May 12, 2011