RIGHTS
Since the domain name and the Complainant’s trademarks are not identical, the key element investigated and considered by the Panel is whether the disputed domain name consisting of a term “ARLA” accompanied by a term “FOOD” is confusingly similar to the Complainant’s trademarks.
The threshold test for confusing similarity under the UDRP involves a comparison between the trademark and the domain name itself to determine likelihood of Internet user confusion. In order to satisfy this test, the relevant trademark would generally need to be recognizable as such within the domain name. An addition of common, dictionary, descriptive, or other descriptive terms is typically insufficient to prevent threshold Internet user confusion. Confusing similarity test under the UDRP typically involves a straightforward visual and aural comparison of the trademark with the domain name.
Applying the principles described above, the Panel contends that incorporation of the dominant “ARLA” element of Complainant’s trademarks (which standalone enjoys high level of distinctiveness) into the disputed domain name constitute confusing similarity between Complainant’s trademarks and such domain name. Addition of a non-distinctive element “FOOD” and the hyphen “-“ to the “ARLA” denomination cannot prevent the association in the eyes of internet consumers between the disputed domain name and the Complainant’s trademarks and thus the likelihood of confusion still exists.
In addition, the disputed domain name is almost identical to the Complainant’s trademark for ARLA FOODS (the only difference being a plural “foods” compared to a singular “food”).
For sake of completeness, the Panel asserts that the top-level suffix in the domain name (i.e. the ".com") must be disregarded under the confusing similarity test as it is a necessary technical requirement of registration.
Therefore, the Panel has decided that there is confusing similarity in this case, it also concludes that the Complainant has satisfied paragraph 4(a)(i) of UDRP Policy.
NO RIGHTS OR LEGITIMATE INTERESTS
As evidenced by the Complainant and based on general Internet search, the Respondent is not commonly known by the disputed domain name. Given the fact, that (i) the disputed domain name has not been used and (ii) in the absence of the Respondent's response, the Panel concludes that there is no indication that the domain name was intended to be used in connection with a bona fide offering of goods or services as required by UDRP Policy.
Consequently, the evidentiary burden shifts to the Respondent to show by concrete evidence that it does have rights or legitimate interests in that name. However, the Respondent failed to provide any information and evidence that it has relevant rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a) (ii) of UDRP Policy).
BAD FAITH
The Panel finds it grounded that the Respondent offered the disputed domain name for sale to the Complainant as the Respondent made an active attempt to sell the disputed domain name to the Complainant (trademark holder).
The Respondent has not used the disputed domain name in any manner, however, the Panel concludes (as it has been ruled in many similar cases, as for example Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003, <telstra.org>, Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574, <jupiterscasino.com>, Ladbroke Group Plc v. Sonoma International LDC, WIPO Case No. D2002-0131, <ladbrokespoker.com>) that the apparent lack of so-called active use of the disputed domain name does not as such prevent a finding of bad faith.
Such circumstances indicate that the Respondent has registered and used the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name registration to the Complainant.
For the reasons described above and since the Respondent failed to provide any explanation in this regard, the Panel contends, on the balance of probabilities, that the disputed domain name has been registered and is being used by the Respondent in bad faith (within the meaning of paragraph 4(a)(iii) of UDRP Policy).
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