WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Arla Foods amba v. Ho Nim Case No. D2010-0157 1. The Parties
The Complainant is Arla Foods amba of Denmark, represented by Zacco Denmark A/S, Denmark.
The Respondent is Ho Nim of Shanghai, the People's Republic of China. 2. The Domain Name and Registrar
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 February 3, 2010. On February 4, 2010, the Center transmitted by email to A, Inc. a request for registrar verification in connection with the disputed domain name. On February 8, 2010, 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 the Respondent of the Complaint, and the proceedings commenced on February 9, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 1, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on March 2, 2010.
The Center appointed J. Christopher Thomas as the sole panelist in this matter on March 8, 2010. 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 Arla Foods 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 49.5 billion in 2008.
The Complainant has registered the trademark ARLA in a large number of countries in connection with “foodstuffs”. Attached to the Complaint was a list of such registrations. In addition, the Complainant is the holder of several domain names incorporating “arla” including in particular , and .
Arla Foods Ingredients amba is the registered Danish company name of one of the Complainant's subsidiaries. Evidence of this relationship has provided with the Complaint, and further information can be found at “wwvv.”.
When the Complainant became aware that the Respondent had registered the domain name and that the disputed domain name was connected to an active website, the Complainant decided to file the present complaint. 5. Parties' Contentions A. Complainant
In order for the Complainant to successfully argue that the disputed domain name should be transferred to the Complainant, the domain name must be identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The Complainant argues that the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights.
The name of the Complainant's subsidiary is Arla Foods Ingredients amba. The Complainant and its subsidiary Arla Foods Ingredients amba use the domain name in connection with the marketing of their products. By virtue of the use of the registered Danish company name and the use of the above-mentioned domain name, the Complainant appears to hold earlier unregistered trademark rights to the denomination ARLA FOODS INGREDIENTS. In addition, Arla is the predominant element of the Complainant's company name, Arla Foods Amba. The mark ARLA is registered for various dairy products and ingredients.
The Complainant asserts that it is one of Europe's largest dairy companies and the trademark ARLA is well-known in connection with dairy products.
The disputed domain name is said to be quasi-identical to the Complainant's company name Arla Foods Ingredients amba, save for the omission of the letter “s” after “food”. The Complainant's trademark ARLA, and the company names Arla Foods amba and Arla Foods Ingredients amba (“amba” being the short name of the Danish company form andelsselskab med begrnset ansvar, meaning co-operative), are fanciful names with a high degree of distinctiveness. The Complainant's subsidiary is known as Arla Foods Ingredients amba and uses the domain name to market its products.
The Respondent has no rights or legitimate interests in respect of the disputed domain name.
The Complainant asserts that the Respondent has no known rights or legitimate interests in respect of the disputed domain name that is the subject of the Complaint. There is no evidence of the Respondent's use 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.
The website to which the disputed domain name devolves is characterized as a typical portal site with various links to other websites related to 1.a. “food”. None of the links are related to the Complainant, and there is no indication on the website that the Respondent had made a bona fide use of the domain name or the word “arlafoodingredients”.
There is thus no evidence that the Respondent has made any legitimate use of the name “arlafoodingredients” as a trademark or service mark, nor is there any evidence that the Respondent is commonly known as “arlafoodingredients”.
The Complainant notes further that is has not authorized or licensed the Respondent's use of its Arla Foods Ingredients company name on or in connection with the Respondent's website.
The domain name was registered and is being used in bad faith.
The trademark ARLA of the Complainant is registered in a large number of countries and is used worldwide. The Complainant Arla Foods is one of Europe's largest dairy companies.
The Respondent's domain name has been used to link to a commercial website with sponsored links. This constitutes “commercial” use of the domain name.
View being had to the length of the domain name and the fact that is quasi-identical to the Complainant's domain name , the use of the domain name is likely to create confusion amongst Internet users as to whether the website to which the domain name resolves is endorsed by or affiliated in some way with the Complainant. As it appears, the website contains links to foodstuff related pages, which again increases the risk of confusion.
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 mark and company name as to the source, sponsorship, affiliation, or endorsement of the Respondent's website or other location, and this constitutes evidence of bad faith.
The Complainant is of the opinion that the trademark ARLA is well-known. Consequently, it is most likely that the Respondent was aware of the Complainant, and its trademarks and company name, when the Respondent registered the disputed domain name. This view is supported by the fact that the domain name encompasses the registered trademark of the Complainant.
The domain name was registered on November 16, 2009 and it seems likely that the Respondent became aware of traffic to the website “www.” and registered the quasi-identical domain name in an attempt to make a “pay-per-click” profit from the typos of Internet users searching for the Complainant's subsidiary's website.
The convergence of letters in the Complainant's domain name and the Respondent's domain name speaks for itself. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
In order to sustain a complaint, the Panel must be satisfied that the three elements provided for under the Policy are present. The Panel has reviewed the Complaint and the evidence filed in support thereof and has concluded that the Complainant has made out its case. A. Identical or Confusingly Similar
The Complainant has shown that the disputed domain name is confusingly similar to a mark in which the Complainant has rights. The disputed domain name contains the registered ARLA mark and simply adds the generic words “foodingredients” linked together. Furthermore, given that the Complainant is in the business of producing various dairy products and ingredients and the mark ARLA is associated therewith, it is plain that the disputed domain name meets the first element. B. Rights or Legitimate Interests
The Complainant has asserted and the Respondent has not sought to rebut the assertions made in the Complaint that the Respondent has no rights or legitimate interests in the disputed domain name.
None of the links on the website at the disputed domain name are related to the Complainant (although they relate to food items generally), and there is no indication on the website that the Respondent had made a bona fide use of the domain name or the word “arlafoodingredients”.
There is no evidence of the Respondent's use 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. C. Registered and Used in Bad Faith
Turning to the issue of “bad faith” use, the Panel has little difficulty finding that this element has also been made out. The website does not make a legitimate noncommercial or fair use of the domain name; rather, the disputed domain name devolves to a commercial website with sponsored links to similar goods as those offered by the Complainant. 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 domain name be transferred to the Complainant.
J. Christopher Thomas
Sole Panelist
Dated: March 22, 2010
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