WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Arla Foods amba v. GuoJianguang
Case No. D2014-0988
1. The Parties
The Complainant is Arla Foods amba of Viby J, Denmark, represented by Zacco Denmark A/S, Denmark.
The Respondent is GuoJianguang of Beijing, China.
2. The Domain Name and Registrar
The disputed domain name <arlagaarden.com> is registered with eName Technology Co., Ltd. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 11, 2014. On June 11, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 12, 2014, 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 16, 2014, the Center transmitted an email to the parties in both Chinese and English language regarding the language of the proceeding. On June 19, 2014, the Complainant confirmed its 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceeding commenced on June 23, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was July 13, 2014. The Response was filed with the Center on July 13, 2014.
The Center appointed Sebastian M.W. Hughes as the sole panelist in this matter on July 30, 2014. 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
A. Complainant
The Complainant is a company incorporated in Denmark and one of the world’s largest dairy cooperative companies. The Complainant is the owner of numerous registrations worldwide for the trade marks ARLA, ARLAGÅRDEN and ARLAGAARDEN (the “Trade Mark(s)”), the earliest registration dating from 2000, including registrations in China, where the Respondent is based.
B. Respondent
The Respondent is an individual located in China.
C. The Disputed Domain Name
The disputed domain name was registered on October 30, 2012.
D. The Website at the Disputed Domain Name
The disputed domain name has not been used.
5. Parties’ Contentions
A. Complainant
The Complainant made the following submissions in the Complaint.
The Complainant is a cooperative owned by approximately 12,300 farmers in Denmark, Sweden, the United Kingdom, Germany, Belgium and Luxembourg. The Complainant also operates subsidiaries in a further 31 countries.
The disputed domain name is confusingly similar or identical to the Trade Marks. ARLAGAARDEN is the English language version of ARLAGÅRDEN, as the letter “Å” is only found in the Danish language (and is accordingly rendered “AA” in other European languages).
The Respondent has no rights or legitimate interests in respect of the disputed domain name. The Respondent is not affiliated with or authorised by the Complainant. The Respondent is not using the disputed domain name in respect of a bona fide offering of goods or services. The Respondent is not commonly known by the disputed domain name.
The disputed domain name has been registered and used in bad faith. The Trade Mark is a well-known mark and, given the notoriety of the Complainant and of the Trade Marks, the Respondent must have known of the Complainant and of the Trade Marks (and of the various websites operated by the Complainant under the Trade Marks) when it registered the disputed domain name. Although the Respondent has not made any active use of the disputed domain name, it likely registered the disputed domain name in order to profit by selling it to the Complainant for an inflated price. The disputed domain name has been linked to a website whose sole purpose is to sell the disputed domain name.
Alternatively, in all the circumstances, the Respondent’s registration and passive use of the disputed domain name amounts to bad faith.
B. Respondent
The Respondent made the following submissions in the Response.
The Complainant did not formally announce it was entering the Chinese market until December 2012 and did not enter the Chinese market until as late as September 2013. The disputed domain name was registered before the Complainant’s relevant trade mark applications in China were approved for registration. Furthermore, its trade mark registrations in China do not extend protection to other industries.
The Respondent’s registration and use of the disputed domain name must be viewed from the perspective of Chinese Internet users and Chinese trade mark law. In registering the disputed domain name in these circumstances, the Respondent has a perfectly legitimate right to use the disputed domain name in China and, accordingly, the disputed domain name has not been registered and used in bad faith.
6. Discussion and Findings
6.1. Language of the Proceeding
The language of the Registration Agreement for the disputed domain name is Chinese. Pursuant to the Rules, paragraph 11, in the absence of an agreement between the parties, or unless specified otherwise in the registration agreement, the language of the administrative proceeding shall be the language of the registration agreement.
Paragraph 11(a) of the Rules allows the Panel to determine the language of the proceeding having regard to all the circumstances. In particular, it is established practice to take paragraphs 10(b) and (c) of the Rules into consideration for the purpose of determining the language of the proceeding. In other words, it is important to ensure fairness to the parties and the maintenance of an inexpensive and expeditious avenue for resolving domain name disputes. Language requirements should not lead to undue burdens being placed on the parties and undue delay to the proceeding.
The Complainant has provided evidence to suggest the Respondent was the respondent in a previous English language UDRP proceeding, and that this indicates the Respondent is proficient in English.
The Respondent did not make any submissions with respect to the language of the proceeding, and confirmed in the Response that it was the respondent in the previous UDRP proceeding cited by the Complainant. It is noteworthy that the Respondent has not contested the Complainant’s assertion that the Respondent is proficient in English.
In exercising its discretion to use a language other than that of the registration agreement, the Panel has to exercise such discretion judicially in the spirit of fairness and justice to both parties, taking into account all relevant circumstances of the case, including matters such as the parties’ ability to understand and use the proposed language, time and costs.
The Panel therefore finds, in all the circumstances, it is likely the Respondent is conversant in the English language. The Panel is also mindful of the need to ensure the proceeding is conducted in a timely and cost effective manner.
The Panel also notes that the Respondent has in any event been able to proceed with preparing and filing its Chinese language Response.
Having considered all the matters above, the Panel therefore determines under paragraph 11(a) of the Rules that:
(1) It will accept the filing of the Complaint in English;
(2) It will accept the filing of the Response in Chinese; and
(3) It will render its decision in English.
6.2. Decision
The Complainant must prove each of the three elements in paragraph 4(a) of the Policy in order to prevail.
A. Identical or Confusingly Similar
The Panel finds that the Complainant has rights in the Trade Marks acquired through use and registration which predate the date of registration of the disputed domain name by many years.
The disputed domain name is confusingly similar to the ARLA and ARLAGÅRDEN Trade Marks and is identical to the ARLAGAARDEN Trade Mark.
The Policy simply requires complainants to establish that domain names are confusingly similar or identical to trade marks in respect of which they have rights. In this regard the submissions of the Respondent regarding (1) the date(s) of approval of the Complainant’s registrations for the Trade Marks in China; and (2) whether the Complainant’s registrations for the Trade Marks in China extend to other industries, can have no relevance from a UDRP perspective (see paragraph 1.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Second Edition (“WIPO Overview 2.0”)).
The Panel therefore finds that the disputed domain name is confusingly similar or identical to the Trade Marks and holds that the Complaint fulfils the first condition of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides a list of non-exhaustive circumstances any of which is sufficient to demonstrate that a respondent has rights or legitimate interests in a domain name:
(i) before any notice to the respondent of the dispute, 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; or
(ii) the respondent (as an individual, business, or other organisation) has been commonly known by the domain name even if the respondent has acquired no trade mark 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 consumers or to tarnish the trade mark or service mark at issue.
There is no evidence that the Complainant has authorised, licensed, or permitted the Respondent to register or use the disputed domain name or to use the Trade Marks. The Complainant has prior rights in the Trade Marks which precede the Respondent’s registration of the disputed domain name by at least 12 years. The Panel finds on the record that there is therefore a prima facie case that the Respondent has no rights or legitimate interests in the disputed domain name and the burden is thus on the Respondent to produce evidence to rebut this presumption.
The Panel finds the submissions of the Respondent entirely unconvincing.
The Respondent has failed to show that it has acquired any trade mark rights in respect of the disputed domain name or that the disputed domain name is used in connection with a bona fide offering of goods or services. The Respondent has adduced no evidence to show that the disputed domain name has been actively used.
There has been no evidence adduced to show that the Respondent has been commonly known by the disputed domain name.
There has been no evidence adduced to show that the Respondent is making any legitimate noncommercial or fair use of the disputed domain name.
The Panel finds that the Respondent has failed to produce any evidence to establish rights or legitimate interests in the disputed domain name. The Panel therefore finds that the Complaint fulfils the second condition of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
In all the circumstances, and in particular given the notoriety of the Complainant and the Trade Marks, and as the disputed domain name is identical to the ARLAGÅRDEN Trade Mark, the Panel finds that the Respondent more likely than not was aware of the Complainant and had the Trade Marks in mind when registering the disputed domain name. In this regard, the Respondent’s submissions regarding the status and effect of the Complainant’s registrations for the Trade Marks in China, and regarding (1) the formal announcement of the Complainant’s entry into the Chinese market; and (2) the purported date of the Complainant’s entry into China, if nothing else fortify the Panel in reaching such a conclusion.
As with the Respondent’s submissions regarding the second limb under paragraph 4(a) of the Policy, the Panel finds the Respondent’s submissions regarding the Respondent’s purported lack of bad faith entirely unpersuasive.
The Panel notes, for the record, the Complainant did not adduce any evidence to support its assertion that the disputed domain name has been resolved to a website which offers the disputed domain name for sale. The Panel is therefore unable, on the evidence, to make a finding (whether under paragraph 4(b)(i) of the Policy or otherwise) that the Respondent registered the disputed domain name for the purpose of selling it to the Complainant (or any other party) for a price exceeding the Respondent’s out-of-pocket expenses incurred in registering the disputed domain name.
The Panel nonetheless finds that, in all the circumstances, the Respondent’s passive use of the disputed domain name, together with the factors outlined above, are sufficient to amount to bad faith for the purposes of the third limb under paragraph 4(a) of the Policy.
For the foregoing reasons, the Panel concludes that the disputed domain name has been registered and is being used in bad faith. Accordingly, the third condition of paragraph 4(a) of the Policy has been fulfilled.
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 <arlagaarden.com> be transferred to the Complainant.
Sebastian M.W. Hughes
Sole Panelist
Dated: August 13, 2014
