The Complainant is Arla Foods Amba of Viby, Denmark, represented by BrandIT GmbH, Switzerland.
The Respondent is Fredrik Enghall of Savsjo, Sweden. 2. The Domain Name and Registrar
The disputed domain name is registered with O A/S (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 14, 2016. On June 14, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 17, 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.
On June 17, 2016, the Center sent an email communication to the parties in both English and Swedish regarding the language of the proceeding. On the same day, the Complainant submitted a request that English be the language of the proceeding. The Respondent did not comment on the language of the proceeding by the specified due date.
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 in English and Swedish of the Complaint, and the proceeding commenced on June 23, 2016. In accordance with the Rules, paragraph 5, the due date for Response was July 13, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 14, 2016.
The Center appointed Mathias Lilleengen as the sole panelist in this matter on July 20, 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. 4. Factual Background
The Complainant is a global dairy company from Denmark. In Sweden, where the Respondent is located, the Complainant operates its website under the domain name . The Complainant has several offices in Sweden.
The Complainant holds several trademark registrations in many countries, such as the Swedish trademark registration no. 280288 (from 1991). All trademark registrations predate the disputed domain name registration.
The Respondent registered the disputed domain name on May 10, 2016. The disputed domain name resolved to a parking page of the Registrar. 5. Parties’ Contentions A. Complainant
The Complainant has documented its trademark registrations in the Complaint. The Complainant argues, with reference to former UDRP decisions, that ARLA is a well-known trademark. Further, that the disputed domain name identical to the Complainant’s trademarks, save the generic Top-Level Domain (“gLTD”) suffix “.one”.
The Complainant argues that the Respondent has not been commonly known by the disputed domain name, nor that the Respondent has any history of using the disputed domain name in connection with a bona fide offering of goods or services. The Complainant argues that the fact that the disputed domain name points to a parking page provided by the Registrar, does not provide a legitimate interest under the Policy.
Finally, the Complainant points out that its trademark registrations predate the disputed domain name’s registration, and the Complainant has a strong business presence in the Nordic countries. This demonstrates that the Respondent knew of the Complainant, and therefore was in bad faith at the time of registration. According to the Complainant, there is also bad faith use as required by the Policy. The parking of a registration identical to a well-known trademark and the lack of an explanation from the Respondent, indicate bad faith. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Language of the proceeding
The language of the registration agreement is Swedish. The Complainant has requested the language of the proceeding to be English, as the Respondent has not replied to the cease and desist letter or any communication from the Center. The Respondent is based in Sweden, where, according to the Complainant, “the international business language is English”. Further, the disputed domain name is registered under the new gTLD “.one”, which is an English word. ARLA is the trademark of the Complainant. The Complainant has English as its company language. Finally, the disputed domain name is registered with a registrar that uses English as its language, and the disputed domain name points to a parking web page with English text. This is in the Complainant’s opinion evidence for that the Respondent is likely to understand English and would not unfairly be disfavored by English as language of the proceeding. The Complainant also adds that translating of the Complaint would unnecessary delay the case, and the Complainant would be “unfairly disadvantaged being forced to translate as translation would raise high costs”.
Based on the evidence submitted by the Complainant, the Panel agrees that the Respondent is likely to understand enough English to reply, at least in a few words, to the cease and desist letter. Moreover, the Respondent has not replied to the communications from the Center, even though the said communications were in both English and Swedish. Taking into account the mentioned circumstances, the Respondent has – in the Panel’s view – been given a fair chance to object, but the Respondent has not done so.
The Panel also agrees that it may seem both unnecessary and burdensome for the Complainant at this stage of the proceeding to be forced to translate the Complaint.
The Panel thus determines, under paragraph 11 of the UDRP Rules, and with reference to relevant case law,1 that the language of this proceeding be English.
The Panel however points out that if the Respondent had given a creditable explanation to why the language of proceeding should be the language of the registration agreement, or if there were other indications that the Respondent would not be offered fair chance to reply as the Complaint is in English, this Panel may have requested a translation of the Complaint. B. Identical or Confusingly Similar
The Complainant has established that it has rights in the trademark ARLA.
The test for confusingly similarity under the Policy involves the comparison between the trademark and the disputed domain name. In this case, the dispute domain name is identical to the Complainant’s trademark.
For the purposes of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is permissible for the Panel to ignore the gTLD “.one”.
The Panel finds that the disputed domain name is identical to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. C. Rights or Legitimate Interests
The Respondent does not have registered trademarks or trade names corresponding to the disputed domain name. Neither is there any evidence in the available record suggesting that the Respondent has been using “Arla” in a way that would give it rights or legitimate interests in the disputed domain name. The Complainant has not granted any authorization to the Respondent to use its trademark in a domain name.
The Respondent is not using the disputed domain name in connection with a bona fide offering of goods or services. It seems that the Respondent has chosen the disputed domain name based on the Complainant’s trademark value. The Respondent has not answered the Complainant’s contentions.
The Panel finds that the Complainant has made out an unrebutted prima facie case. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the disputed domain name in accordance with paragraph 4(a)(ii) of the Policy. D. Registered and Used in Bad Faith
The Panel is convinced that the Respondent was aware of the Complainant’s trademark ARLA and its business when he registered the disputed domain name. The Complainant has used its trademark long before the registration of the disputed domain name. The trademark is widely known.
The Panel also finds use of the disputed domain name in bad faith. The use of the disputed domain name identical to a well-known trademark to resolve to a registrar’s parking page, and the lack of an explanation from the Respondent, indicate bad faith.
The Panel concludes that the disputed domain name was registered and is being used in bad faith, within the meaning of the paragraph 4(a)(iii) of the Policy. 7. Decision
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 be transferred to the Complainant.
Mathias Lilleengen
Sole Panelist
Date: August 2, 2016
1 L’Oreal S.A. v. MUNHYUNJA,WIPO Case No. D2003-0585, Deutsche Messe AG v. Kim Hyungho,WIPO Case No. D2003-0679, SWX Swiss Exchange v. SWX Financial LTD,WIPO Case No. D2008-0400, MySpace Inc. v. Will Eom,WIPO Case No. D2008-0448, Fissler GmbH v. Chin Jang Ho,WIPO Case No. D2008-1002, Z, Inc. v. Zufu aka Huahaotrade,WIPO Case No. D2008-1191, and Biotechnology and Biological Sciences Research Council v. Kim Jung Hak,WIPO Case No. D2009-1583.
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