WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arla Foods amba v. Ye Li
Case No. DME2015-0010
1. The Parties
The Complainant is Arla Foods amba of Viby J, Denmark, represented by Zacco Denmark A/S, Denmark.
The Respondent is Ye Li of Changsha, Hunan, China.
2. The Domain Name and Registrar
The disputed domain name <arlafoods.me> is registered with eNom Inc (the "Registrar").
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on October 13, 2015. On October 13, 2015, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 proceeding commenced on October 19, 2015. In accordance with the Rules, paragraph 5, the due date for Response was November 8, 2015. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on November 9, 2015.
The Center appointed Halvor Manshaus as the sole panelist in this matter on November 13, 2015. 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.
4. Factual Background
The Complainant is a Danish cooperative owned by approximately 12,300 farmers in Denmark, Sweden, the United Kingdom of Great Britain and Northern Ireland, Germany, Belgium and Luxembourg. It is one of the world's largest dairy companies, operating internationally in 34 countries.
The Complainant owns the trademark ARLA FOODS, registered in Denmark on March 6, 2000 (registration no. VR 2000 01185) for several types of foodstuffs and more in classes 1, 5, 29, 30, 31 and 32, and the trademark ARLA, registered internationally on March 20, 2000 and inter alia valid in the United States of America and the European Union (registration no. 731917) for several types of foodstuffs and more in classes 1, 5, 29, 30, 31 and 32. The Complainant is the holder of several domain names incorporating these trademarks, including <arla.com>, <arlafoods.org> and <arlafoods.com>. The Complainant's business name comprises the trademark ARLA FOODS.
The Respondent is a private individual. The Respondent is listed as the owner of the disputed domain name <arlafoods.me>, first registered in March 31, 2015. As of the date of this decision, the disputed domain name resolves to a parking page.
5. Parties' Contentions
The Complainant contends that the disputed domain name is confusingly similar to trademarks in which the Complainant has rights. The disputed domain name consists of the Complainant's trademark ARLA FOODS in addition to the country code Top-Level Domain ("ccTLD") ".me". This should be sufficient, the Complainant asserts, for the Panel to find identity between the disputed domain name and the Complainant's trademark and service mark. The term "arla" is arbitrary and has a high level of distinctiveness and the use of the term in the disputed domain name is likely to create confusion amongst Internet users as to whether the disputed domain name is connected with the Complainant in some manner.
The Complainant states that it has not authorized or licensed the Respondent's use of its ARLA and ARLA FOODS trademarks. Furthermore, to the best of the Complainant's knowledge, the Respondent has no known rights or legitimate interests in respect of the disputed domain name. There is no evidence of the Respondent's use of the disputed domain name, or preparation thereof, in connection with a bona fide offering of goods or services. The Respondent's website is a page that contains only google ads and a link where the Respondent offers the public to buy the disputed domain name for USD 6,000.
Finally the Complainant submits that the disputed domain name was registered and is being used in bad faith, based on the following assertions: (i) the Complainant's trademark ARLA is registered and used in a number of countries worldwide; (ii) the Complainant is Europe's largest dairy company and its trade name and trademarks ARLA and ARLA FOODS are well known globally; (iii) there is no possible legitimate use of a domain name such as the disputed domain name, consisting of a very distinctive and reputed trademark such as ARLA together with a descriptive noun such as "foods"; (iv) the Respondent's use of google ads and offering to sell the disputed domain name for USD 6,000, a very high price for the domain name, entails that the registration was likely made in the hopes of being able to sell it to the Complainant; and (v) since the Complainant's trademark ARLA is registered in a number of countries and is used worldwide and the Complainant is one of the world's largest dairy companies, it is most likely that the Respondent was aware of the Complainant and its trademarks and websites when the Respondent registered the disputed domain name.
In support of its arguments, the Complainant refers to previous UDRP cases concerning <arlafood.com>, <arlafoodingredients.com>, <arlafoodabma.com> and <arla-foods.org> as well as several other UDRP decisions.
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The Complainant has, in accordance with paragraph 4(i) of the Policy, requested that the disputed domain name be transferred to the Complainant.
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding and obtain the transfer of the disputed domain name, the Complainant must establish that each of the three following elements is satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Pursuant to paragraph 15(a) of the Rules, the Panel shall decide the Complaint on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Moreover, in accordance with paragraph 14(b) of the Rules, if a party, in the absence of exceptional circumstances, does not comply with any provision of, or requirement under, the Rules of any request from the Panel, the Panel shall draw such inferences therefrom, as it deems appropriate.
On the basis of the evidence introduced by the Complainant and in particular with regard to the content of the relevant provisions of the Policy, (paragraphs 4(a), (b), (c)), the Panel concludes as follows:
A. Identical or Confusingly Similar
The disputed domain name, <arlafoods.me>, comprises the trademark ARLA FOODS in its entirety. The removal of the space between "arla" and "foods" and the addition of the extension ".me" is insufficient to distinguish the disputed domain name from the Complainant's trademark.
The Panel concludes that the disputed domain name is confusingly similar to trademarks in which the Complainant has rights.
B. Rights or Legitimate Interests
The Panel finds that the Respondent has not received any license or other permission to use the Complainant's trademarks or use any domain name incorporating or simulating these marks. Further, the Panel has not been presented with, or otherwise discovered, any evidence showing that the Respondent is commonly known by the disputed domain name or that it has acquired any trademark or service mark rights to use the name.
The term "arla" does not have a common dictionary meaning in the English language. It is a fanciful term, most commonly associated with the Complainant's business and trademarks. Similarly the fanciful term "arla" together with the common English term "foods" is most commonly associated with the Complainant's business and trademarks.
The presented evidence referred to by the Complainant is, in the Panel's view, sufficient to establish prima facie that the Respondent has no rights or legitimate interests in the disputed domain name. As held by the panel in Ticketmaster Corporation v. Global Access, WIPO Case No. D2007-1921, the Respondent carries the burden of demonstrating rights or legitimate interests in the disputed domain name when such prima facie case is made.
The Respondent has not replied to the Complainant's contentions. The Panel thus concludes that the Respondent has no rights or legitimate interests in respect of the disputed domain name.
C. Registered and Used in Bad Faith
At the time of this decision, the disputed domain name, <arlafoods.me>, resolves to a parking page which includes promoted links to websites, a notice that the disputed domain name is "parked with Sedo" and "part of Sedo's domain parking program", which according to Sedo's website "www.sedo.com" allows domain owners to "earn money with [their] unused domains and sell the even quicker" through targeted ads which "thematically correspond to the domain name". Furthermore, the parking page displays a notice informing visitors that the disputed domain name is available for purchase with a suggested price of USD 6,000.
Paragraph 4(b) of the Policy sets out four non-exclusive circumstances any of which, if found by the Panel, shall be evidence of registration and use of a domain name in bad faith.
According to paragraph 4(b)(i) of the Policy, this includes circumstances indicating that the domain name has been acquired primarily for the purpose of selling the domain name to a complainant who is the owner of the trademark or to a competitor of that complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name.
In the present case, the Panel considers that the following circumstances when seen together sufficiently indicate the Respondent's intent in this regard: (i) The disputed domain name is currently passively parked; (ii) the disputed domain name is specifically offered for sale with an indicated price of USD 6,000, which is significantly higher than the costs the Respondent might reasonably be expected to incur related to such a domain name; and (iii) the Respondent has not substantiated any actual or contemplated good faith purpose for the registration of the disputed domain name and it is difficult to conceive of any such good faith purpose.
Further, the Panel considers it likely that the Respondent was aware of the Complainant's well-known and distinctive trademarks ARLA and ARLA FOODS at the time of registration of the disputed domain name. The Complainant's trademark ARLA is registered in China, which is the Respondent's place of residence, and the Complainant was conducting business in China under the trademarks when the Respondent registered the disputed domain name.
The Panel therefore finds that the Respondent's registration of the disputed domain name was in bad faith. The next question is whether the Respondent's use of the disputed domain name is in bad faith.
Paragraph 4(b)(iv) of the Policy states that the use of a domain name to intentionally attempt to attract, for commercial gain, Internet users to a website or other on-line location, by creating a likelihood of confusion with a complainant's mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your website or location, shall be considered evidence of use of the domain name in bad faith.
The only activity on the disputed domain name at the time of this decision is the offering of the disputed domain name for sale and the presentation of promotional links to other websites – so-called "pay per click" advertising. This entails that the Respondent is using the disputed domain name to attract Internet users for commercial gain. The Panel considers the disputed domain name to be confusingly similar to the Complainant's trademarks, and that the Respondent's advertising through the disputed domain name is creating a likelihood of confusion. The targeting of the pay per click advertising to "thematically" correspond to the disputed domain name increases the likelihood of confusion. Because the disputed domain name fully comprises the Complainant's trademarks, which are naturally used in connection with the type of goods the Complainant offers under the trademarks, such advertising generates links to, among other things, websites offering goods or services from the Complainant's competitors. Internet users seeking information about the Complainant's products may therefore instead be misled into browsing products from a competitor of the Complainant. In support of the above, the Panel refers to the UDRP panel decisions in Owens Corning v. NA, WIPO Case No. D2007-1143, Villeroy & Boch AG v. Mario Pingerna, WIPO Case No. D2007-1912, and The Jennifer Lopez Foundation v. Jeremiah Tieman, Jennifer Lopez Net, Jennifer Lopez, Vaca Systems LLC, WIPO Case No. D2009-0057.
The Panel thus concludes that the Respondent has registered and is using the disputed domain name 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 disputed domain name <arlafoods.me> be transferred to the Complainant.
Date: November 27, 2015