WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arla Foods amba v. Janice Liburd
Case No. D2011-0493
The Complainant is Arla Foods amba of Viby J, Denmark, represented by Zacco Denmark A/S, Denmark.
The Respondent isJanice Liburd of Panama.
2. The Domain Name and Registrar
The disputed domain name <arlalogon.com> (the “Disputed Domain Name”) is registered with Moniker Online Services, LLC.
3. Procedural History
The Complaint was originally filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 16, 2011 naming the Respondent as “: Moniker Privacy Services” of Pompano Beach, Florida, United States of America. 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 18, 2011, Moniker Online Services, LLC 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 Registrar gave the current registrant’s name and contact details as:
East 54st Street,
Panama, 0832-0886, PA
As that constitutes the current WhoIs information, the Panel determines “Janice Liburd” to be the proper Respondent in this proceeding in lieu of the privacy shield placemarker name which was shown when the Complainant conducted a WhoIs search immediately before filing the original Complaint on March 16, 2011. The Center sent an email communication to the Complainant on March 18, 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 the same day.
The Center verified that 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”). References to the Complaint hereafter are to be taken as references to the amended Complaint naming Ms.Liburd as the Respondent.
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 21, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was April 10, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on April 11, 2011.
The Center appointed Philip N. Argy as the sole panelist in this matter on April 18, 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.
All other procedural requirements appear to have been satisfied.
4. Factual Background
The following basic facts, taken from the Complaint and its annexures, are uncontested:
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 word mark ARLA is registered to the Complainant in a very large number of countries, including the United States of America and the European Union, in connection with “foodstuffs”.
The Complainant registered <arla.com> on July 15, 1996. The Disputed Domain Name was registered on February 11, 2011.
5. Parties’ Contentions
The Disputed Domain Name contains the Complainant’s trademark ARLA. The trademark ARLA is well known in connection with dairy products. In addition, the Disputed Domain Name contains the word “logon” which is commonly used to describe the process by which individual access to a website is controlled by identification of the user using credentials provided by the user. The Complainant uses logons or logins in connection with its website “www.arlabenefits.com” which is an Arla employee benefit programme.
The addition of the descriptive word “logon” to ARLA in the Disputed Domain Name does not remove the confusing similarity with the Complainant’s trademark ARLA.
There is no evidence that the Respondent has made any legitimate use of the name “arlalogon” as a trademark or service mark, nor is there any evidence that the Respondent is commonly known as “arlalogon”. The Complainant has not authorised or licensed the Respondent’s use of the ARLA trademark.
The Disputed Domain Name resolves to a commercial website with sponsored links. Thus the Respondent has intentionally attempted to attract, for commercial gain, Internet users to an on-line location, by creating a likelihood of confusion with the Complainant’s marks as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website or other location, and this constitutes evidence of bad faith.
It is most likely that the Respondent was aware of the Complainant and its trademarks when the Respondent registered the Disputed Domain Name because the trademark of the Complainant is incorporated in the Disputed Domain Name.
The Respondent did not reply to the Complainant’s contentions and no Response was filed before the Panel delivered its decision.
6. Discussion and Findings
The Complainant bears the onus of proof in relation to the three limbs of the Policy which have to be established. Taking that principle as the starting point, the Panel’s formal findings and reasoning follow.
A. Identical or Confusingly Similar
The Disputed Domain Name plainly includes the Complainant’s primary trademark, ARLA, to which it appends the ordinary English word “logon”.
The addition of the word “logon” to the Complainant’s ARLA trademark does nothing to alleviate and everything to compound the likelihood that Internet users will be confused about the trade source of any products or services referred to on any website to which the Disputed Domain Name resolves. The Disputed Domain Name is self-evidently confusingly similar to the Complainant’s trademark and the Panel so finds.
B. Rights or Legitimate Interests
Absent any explanation from the Respondent as to how it comes to be using the Complainant’s trademark in the Disputed Domain Name, it is hard for the Panel to envisage any legitimate right or interest that the Respondent could have in respect of the Disputed Domain Name, especially given that the website to which the Disputed Domain Name resolves offers products competing with the Complainant’s products. The Panel finds in favour of the Complainant in relation to this leg of the Policy.
C. Registered and Used in Bad Faith
Given that the website to which the Disputed Domain Name resolves is offering goods and services that compete with those of the Complainant, it is perfectly clear that the Respondent is passing off its site as being affiliated in some way with the Complainant. As the Complainant notes, the fact that its own sites have a logon function demonstrates both the Respondent’s knowledge of the Complainant and the latter’s bad faith at all material times.
The Disputed Domain Name appears to have been first registered on or around February 11, 2011 for a term of only one year. It is not clear if there was any earlier registrant besides the privacy shield originally named as respondent. Certainly the Wayback Machine (“www.archive.org”) has captured no earlier use of the Disputed Domain Name whereas it records usage of the Complainant’s <arla.com> domain name as early as January 1998. The Panel can discern no legitimate basis for the Respondent’s use of a privacy shield service and takes that as corroborative of bad faith.
Again, the Panel has no difficulty in upholding the Complainant’s submissions on this leg of the Policy and finds that the Respondent registered and is using the Disputed Domain Name in bad faith.
For all 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 <arlalogon.com> be transferred to the Complainant.
Philip N. Argy
Dated: April 24, 2011