WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Arla Foods amba v. Lu Lan Case No. D2009-1539 1. The Parties
Complainant is Arla Foods amba of Viby J, Denmark, represented by Zacco Denmark A/S, Denmark.
Respondent is Lu Lan of Shanghai, China. 2. The Domain Name and Registrar
The disputed domain name (“the Disputed Domain Name”) is registered with A, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on November 16, 2009. On November 16, 2009, the Center transmitted by email to A, Inc. a request for registrar verification in connection with the Disputed Domain Name.
On November 17, 2009, A, Inc. 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(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on November 19, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was December 9, 2009. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on December 10, 2009.
The Center appointed Erica Aoki as the sole panelist in this matter on December 15, 2009. 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 administrative proceeding is English, the language of the registration agreement. 4. Factual Background
Complainant Arla Foods amba (referred as to “Complainant”) is a co-operative owned by approximately 8,000 farmers in Denmark and Sweden. The Arla Foods Group is one of Europe's largest dairy companies, with a turnover of DKK 495 billion in 2008.
Complainant has registered the trademark ARLA in a very large number of countries in connection with “foodstuffs”. In addition Complainant is the holder of several domain names incorporating “arla”, including in particular and .
When Complainant became aware that Respondent had registered the Disputed Domain Name and that the Disputed Domain Name was connected to an active website, Complainant decided to file the present Complaint. 5. Parties' Contentions A. Complainant
1. Complainant is one of Europe's largest dairy companies and the trademark ARLA is well-known in connection with dairy products.
The Disputed Domain Name consists of Complainant's trademark ARLA with the addition of the noun “food”, which describes the products manufactured by Complainant, and the addition of the word “amba”, which is the short name of the corporate form of Complainant (andelsselskab med begrænset ansvar, meaning co-operative). Further, the Disputed Domain Name is almost identical to the company name of Complainant, “Arla Foods amba”.
The Complainant argues that, the Disputed Domain Name is therefore confusingly similar to Complainant's trademark ARLA, registered for various dairy products and ingredients in large number of countries, and its domain names which incorporate “arla”, including in particular and .
The trademark ARLA is the distinctive element of the Disputed Domain Name. The addition of “foodamba” gives the immediate impression that the site at “www.” is a website of Complainant. The site also contains links to foodstuff-related pages, which again increases the risk of confusion.
2. Respondent does not have any rights or legitimate interests in the Disputed Domain Name.
3. Respondent registered and is using the Disputed Domain Name in bad faith to disrupt Complainant's business.
4. Respondent has never been known by the Disputed Domain Name.
5. Respondent is misleadingly diverting consumers for commercial gain. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Complainant was able to show the requirements specified under paragraph 4(a) of the Policy:
(i) that the Disputed Domain Name is identical or confusingly similar to a trademark or service mark in respect of which Complainant has rights; and
(ii) that Respondent has no rights or legitimate interests in respect of the Disputed Domain Name; and
(iii) that the Disputed Domain Name has been registered and used in bad faith. A. Identical or Confusingly Similar
Based on the facts presented by Complainant, this Panel finds that the Disputed Domain Name is confusingly similar to a mark in which Complainant has rights under Policy paragraph 4(a)(i). The Disputed Domain Name wholly incorporates Complainant's mark ARLA, with the addition of two generic terms which are descriptive of Complainant's good and services. Therefore, the Panel finds that the Disputed Domain Name is confusing similar to Complainant's registered trademark. B. Rights or Legitimate Interests
Respondent is in default and thus has made no affirmative attempt to show its rights or legitimate interests in the Disputed Domain Name.
The Policy indicates that a registrant may have a legitimate interest in a domain name if it was making use of the domain name in connection with a bona fide offering of goods or services prior to notice of the dispute. The Panel finds that this has not occurred in the circumstances of this case. Further there is no evidence of Respondent's use of, or demonstrable preparations to use, the Disputed Domain Name or a name corresponding to the Disputed Domain Name in connection with a bona fide offering of goods or services.
Respondent is in no way connected with Complainant and has no authorization to use any of Complainant's ARLA trademarks.
There is no evidence that Respondent is or was commonly known by the Disputed Domain Name as an individual, business or other organization.
The Policy also indicates that a registrant may have a legitimate interest in a domain name if it is making fair use of the domain name.
Based on the undisputed allegations of Complainant, the Disputed Domain Name has been used to link to a commercial website with sponsored links constituting in a “commercial” use of the Disputed Domain Name.
Respondent's web site at “www.” is a typical portal site with various links to other web sites related to i.e. food related products. The site also contains links to “Arla Foods” but when you follow the links you are linked to pages without any relation to Complainant. None of the links are related to Complainant, and there is no indication on the website that Respondent had made a bona fide use of the Disputed Domain Name or the word “arlafoodamba”. Apparently the sole use of the Disputed Domain Name by Respondent was to divert Internet traffic to gain revenues for the diverted traffic. The Panel therefore finds that Respondent has no rights or legitimate interests in the Disputed Domain Name, under Policy paragraph 4(a)(ii).
There is thus no evidence that Respondent has made any legitimate use of the Disputed Domain Name “arlafoodamba” as a trademark or service mark, nor is there any evidence that Respondent is commonly known as “arlafoodamba”. Accordingly, the Panel finds that the second element of paragraph 4(a)(ii) of the Policy is satisfied. C. Registered and Used in Bad Faith
Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent's on-line location, by creating a likelihood of confusion with Complainant's mark and company name as to the source, sponsorship, affiliation, or endorsement of Respondent's website or other location, which constitutes evidence of bad faith. (Policy, paragraph 4(b)(iv)).
Complainant is of the opinion that the trademark ARLA is well-known. The Panel finds that it is very likely that Respondent was aware of Complainant's rights to the ARLA trademark, showing that the registration of the Disputed Domain Name was made in bad faith.
Also, based on the undisputed allegations, the registration of the Disputed Domain Name by Respondent was most likely in order to divert Internet users seeking information about Complainant.
Accordingly, the Panel finds that Respondent has registered and is using the Disputed Domain Name in bad faith. (Policy, paragraph 4(a)(iii), 4(b); Rules, paragraph 3(b)(ix)(3))
The Disputed Domain Name was registered on October 11, 2009. It seems obvious that the Respondent has apparently picked up on Complainant's trademark and company name and attempted to make a profit out of registering a domain name that clearly included the Complainant's trademark. 7. Decision
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 be transferred to Complainant.
Erica Aoki
Sole Panelist
Dated: December 29, 2009
Full & Egal Universal Law Academy