WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Mejeriforeningen Danish Dairy Board v. Yuanxufu
Case No. D2016-1878
1. The Parties
The Complainant is Mejeriforeningen Danish Dairy Board of Aarhus N, Denmark, represented by BrandIT GmbH, Switzerland.
The Respondent is Yuanxufu of Bazhong, Sichuan, China.
2. The Domain Name and Registrar
The disputed domain name <lurpak.xyz> (the “Domain Name”) is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 15, 2016. That day the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 16, 2016, 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.
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 the Respondent of the Complaint, and the proceedings commenced on September 22, 2016. In accordance with the Rules, paragraph 5, the due date for Response was October 12, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 13, 2016.
The Center appointed Alan L. Limbury as the sole panelist in this matter on October 31, 2016. 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.
The language of the proceeding is English, being the language of the Registration Agreement.
4. Factual Background
The Complainant is the central organisation of 28 Danish dairy companies which process and sell worldwide high-quality milk-based products such as butter. Since 1957 such dairy products have been sold under the Complainant’s trademark LURPAK.
The Complainant has several trademark registrations, including International registration No. 999177 designating China for LURPAK (and device), registered on February 27, 2009; Chinese registration No.11675857 for LURPAK, registered on May 14, 2015. The Complainant registered the domain names <lurpak.com> in 1996 and <lurpak.net> in 2005 to promote its products online.
The Domain Name was registered by the Respondent on June 2, 2016. It resolves to a pay-per-click (“PPC”) website advertising, inter alia, both LURPAK butter and the dairy products of the Complainant’s competitors.
In response to a cease-and-desist letter from the Complainant’s representative dated August 2, 2016, the Respondent replied that day, agreeing to transfer the Domain Name to the Complainant and not to re-register it or any other domain names containing trademarks of the Complainant, in exchange for EUR 1,500 as “the cost of the domain name and corresponding guarantee”.
5. Parties’ Contentions
The Complainant says the Domain Name is identical to its LURPAK trademark, which is well-known in relation to milk-based products, including in China.
The Complainant’s LURPAK mark has been found to be well-known in other UDRP decisions, for example, Mejeriforeningen Danish Dairy Board v. Spiral Matrix, WIPO Case No. D2006-0233 (<wwwlurpakbreakfast.com>); The Danish Dairy Board v. Nedal Almalouf, WIPO Case No. D2007-1434 (<lurpakworld.mobi> and <lurpak.mobi>); Mejeriforeningen Danish Dairy Board v. Domain Manager. yoyo. Email, WIPO Case No. D2014-0730 (<lurpak.email>); and Mejeriforeningen Danish Dairy Board v. Liu TianLe, WIPO Case No. D2016-1387 (<lurpak.org>).
The Respondent has no rights or legitimate interests in the Domain Name, which was registered and is being used in bad faith.
As to legitimacy, the Domain Name resolves to a PPC website displaying advertisements with the Complainant’s trademark and its competitors. This does not constitute a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
As to bad faith, it is highly unlikely that, at the time of registration of the Domain Name, the Respondent was unaware of the Complainant’s rights in the trademark and its value. An inference of bad faith registration and use of the Domain Name also arises from the Respondent’s reply to the Complainant’s cease-and-desist letter, asking for valuable consideration in excess of any documented out-of-pocket costs. Further, the website’s PPC advertisements relate not only to the Complainant’s products but also to those of its competitors. Finally, the Respondent is the named registrant of 625 domain names, including some which incorporate the trademarks of others. Accordingly the Respondent has shown an abusive pattern of conduct by registering trademark protected brand name domain names.
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, to obtain transfer of the Domain Name, the Complainant must prove the following three elements: (i) the Respondent’s Domain Name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; (ii) the Respondent has no rights or legitimate interests in the Domain Name; and (iii) the Respondent has registered the Domain Name and is using it in bad faith.
Under paragraph 15(a) of the Rules, “A Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
A respondent is not obliged to participate in a proceeding under the Policy, but if it fails to do so, asserted facts may be taken as true and reasonable inferences may be drawn from the information provided by the complainant. See Reuters Limited v. Global Net 2000, Inc, WIPO Case No. D2000-0441.
A. Identical or Confusingly Similar
The Complainant has established that it has registered trademark rights in the word LURPAK, including in China.
The Domain Name comprises that mark and the generic Top-Level Domain “xyz” which is generally regarded as irrelevant for the purpose of determining whether a disputed domain name is identical or confusingly similar. See Magnum Piering, Inc. v. The Mudjackers and Garwood S. Wilson, Sr., WIPO Case No. D2000-1525; Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
Accordingly, the Panel finds the Domain Name to be identical to the Complainant’s trademark.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out three illustrative circumstances as examples which, if established by the Respondent, shall demonstrate its rights to or legitimate interests in the Domain Name for purposes of paragraph 4(a)(ii) of the Policy, i.e.,
(i) before any notice to the Respondent of the dispute, the use by the 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) the Respondent (as an individual, business or other organization) has been commonly known by the Domain Name, even if the Respondent has acquired no trademark or service mark rights; or
(iii) the 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 Panel finds that the LURPAK mark is distinctive and well known. The 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 the Respondent. The burden of production therefore shifts to the Respondent to show that it does have rights or legitimate interests in the Domain Name. See Cassava Enterprises Limited, Cassava Enterprises (Gibraltar) Limited v. Victor Chandler International Limited, WIPO Case No. D2004-0753. The Respondent has made no attempt to do so.
In the circumstances of this case, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name.
C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy sets out four illustrative circumstances, which, though not exclusive, shall be evidence of the registration and use of the domain name in bad faith for purposes of paragraph 4(a)(iii) of the Policy. It is sufficient, for present purposes, to consider sub-paragraph 4(b)(iv):
“(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on its website or location”.
The Panel finds that the Respondent’s use of the Domain Name to resolve to a website promoting through PPC advertisements “Lurpak butter” as well as the products of the Complainant’s competitors clearly constitutes evidence of conduct of the kind described in that sub-paragraph.
In the absence of any contrary evidence from the Respondent, the Panel finds that the Domain Name was registered and is being used in bad faith.
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 <lurpak.xyz> be transferred to the Complainant.
Alan L. Limbury
Date: November 2, 2016