{
    "case_number": "CAC-UDRP-104332",
    "time_of_filling": "2022-02-07 13:14:00",
    "domain_names": [
        "arlafoods.shop"
    ],
    "case_administrator": "  Iveta Špiclová   (Czech Arbitration Court) (Case admin)",
    "complainant": [
        "Arla Foods Amba "
    ],
    "complainant_representative": "BRANDIT GmbH",
    "respondent": [
        "Cao Cong Gang"
    ],
    "respondent_representative": null,
    "factual_background": "The Complainant’s contentions can be summarised as follows:\r\n\r\nI. The disputed domain name is confusingly similar to trade marks in which the Complainant has rights\r\n\r\nThe Complainant is the fifth largest dairy company in the world and a cooperative owned by more than 12,500 dairy farmers. The Complainant was constituted in 2000, when the largest Danish dairy cooperative MD Foods merged with its Swedish counterpart Arla ekonomisk Förening. In 2020, the Complainant reached a global revenue of EUR 10.6 billion spanning across 105 countries.\r\n\r\nThe Complainant has a strong presence in the Asian dairy market including an office in China, which revenue totalled EUR 171 million in 2020. \r\n\r\nThe Complainant enjoys a strong online presence and a high degree of renown around the world.\r\n\r\nIn addition to the trade marks set out under the above section “Identification of rights”, the Complainant owns numerous domain names containing the trade mark ARLA, most notably <arla.com> (registered on 15 July 1996); and <arlafoods.com> (registered on 1 October 1999).\r\n\r\nThe disputed domain name <arlafoods.shop> was registered on 21 November 2021 (the disputed domain name).\r\n\r\nThe Complainant claims that the disputed domain name incorporates the trade mark ARLA with the addition of the descriptive term “foods”; that ARLA FOODS trade mark is incorporated entirely; and that UDRP panels have held domain names to be confusingly similar if the entirety of a trade mark, or at least a dominant part of it, is recognisable in the domain name. \r\n\r\nThe Complainant further claims that the generic Top-Level Domain (gTLD) <.shop> is a standard registration requirement and, therefore, should be disregarded in the assessment of confusing similarity.\r\n\r\nThe Complainant therefore concludes that the disputed domain name is identical and confusingly similar to the Complainant’s trade marks.\r\n\r\n\r\nII. The Respondent has no rights or legitimate interests in respect of the disputed domain name\r\n\r\nThe Complainant states that the Respondent is not affiliated with, nor authorised, endorsed or sponsored by, the Complainant in any way, nor is Respondent known by the disputed domain name. In fact, the Complainant claims that the use of a privacy shield by the Respondent reinforces the assumption that the Respondent is not known by the disputed domain name.\r\n\r\nThe Complainant informs that it has sent a cease-and-desist letter to the Respondent, which remains unanswered, at which point in time the disputed domain name resolved to a parking page where the disputed domain name was offered for sale for USD 1,999 (the Respondent’s website). The Complainant further informs that the Respondent does not hold any trade mark rights in the term “arlafoods.shop”.\r\n\r\nThe Complainant therefore concludes that the Respondent is not making a bona fide offering of goods or services by means of the disputed domain name, nor is the Respondent using the disputed domain name for legitimate non-commercial or fair use. \r\n\r\nIn view of the above, the Complainant concludes that the Respondent has no rights or legitimate interests in the dispute domain name. \r\n\r\n\r\nIII. The Respondent registered and is using the disputed domain name in bad faith\r\n\r\nRegistration\r\n\r\nThe Complainant states that the disputed domain name was registered many years after the first registration of the Complainant’s marks; that the ARLA trade mark is widely known and this has been found by previous UDRP decisions (e.g. Arla Foods Amba v. Nashan, CAC Case No. 101486); that the Complainant’s trade marks are registered in many countries, including in China where the Respondent appears to be based; and that the Complainant enjoys a strong online presence. \r\n\r\nThe Complainant further refers to the Complainant’s trade marks being fully incorporated into the disputed domain name, and also to the direct reference to the Complainant’s business name (Arla Foods Amba). \r\n\r\nTherefore, the Complainant states that it is inconceivable that the Respondent was unaware of the Complainant at the time of registration of the disputed domain name. \r\n\r\n\r\nUse \r\n\r\nThe Complainant avers that the Respondent uses the disputed domain name in bad faith in so far as the Respondent offers the disputed domain name for sale in excess of the initial registration costs. The Complainant further avers that an offer to sell a disputed domain name in excess of out-of-pocket costs may evidence bad faith under paragraph 4(b)(i) of the UDRP Policy. The Complainant also quotes the circumstance set out in paragraph 4(b)(iv) of the UDRP Policy. \r\n\r\nIn order to further support the bad faith ground, the Complainant alludes to paragraph 3.1.4 of the WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Jurisprudential Overview 3.0”), according to which: “[…] Panels have consistently found that the mere registration of a domain name that is identical or confusingly similar (particularly domain names comprising typos or incorporating the mark plus a descriptive term) to a famous or widely-known trademark by an unaffiliated entity can by itself create a presumption of bad faith…”. \r\n\r\nAs additional indicia giving rise to a presumption of bad faith, the Complainant refers to the Respondent’s failure to respond to the Complainant’s cease-and-desist letter, and the Respondent’s use of a privacy shield. \r\n\r\nIn view of the above, the Complainant therefore concludes that the Respondent has registered and is using the disputed domain name in bad faith. ",
    "other_legal_proceedings": "The Panel is unaware of any other pending or decided legal proceedings in respect of the disputed domain name.\r\n",
    "no_response_filed": "No administratively compliant Response has been filed.\r\n",
    "rights": "The Complainant has, to the satisfaction of the Panel, shown that the disputed domain name is identical or confusingly similar to trade marks in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).",
    "no_rights_or_legitimate_interests": "The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy).",
    "bad_faith": "The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).",
    "procedural_factors": "Preliminary matter – Language of Proceeding \r\n\r\nA. The Complainant’s request \r\n\r\nOn the matter of the language of the proceedings, the Panel notes as follows:\r\n\r\n• The Complainant submitted its Complaint in English and made a pre-emptive request that English be the language of the proceedings;\r\n\r\n• The registrar’s verification response provided that the language of the registration agreement for the disputed domain name is Chinese; and\r\n\r\n• The Complainant’s grounds for English to be the language of the proceedings can be summarised as follows: (i) the disputed domain name is composed of the English word “foods”; (ii) the disputed domain name resolves to an active website where the disputed domain name is being offered for sale in English, and that the Respondent’s website contains further references in English language; (iii) the Complainant is originally from Denmark whereas the Respondent appears to be based in China, such that the English language, being commonly used internationally, would be considered as neutral and fair for both parties; (iv) a translation of the Complaint would entail significant additional costs for the Complainant and would cause delay to the proceedings.  \r\n\r\n\r\nB. The Panel’s determination\r\n\r\nThe Panel is given discretion under Rule 11 of the UDRP Rules to determine the appropriate language of the proceedings. The Panel notes Rule 10 of the UDRP Rules, which vests the Panel with authority to conduct the proceedings in a manner it deems appropriate while also ensuring both that the parties are treated with equality, and that each party is given a fair opportunity to present its case.\r\n\r\n\r\nOn this particular matter, the Panel takes the liberty to adopt the language of proceeding test applied in CAC Case no. 104144, Writera Limited v. alexander ershov, which helpfully sets out the following six guiding factors:\r\n\r\n(i) the language of the disputed domain name string: the Panel accepts that English is the only identifiable language in the disputed domain name string;\r\n\r\n(ii) the content of the Respondent’s website: the references on the Respondent’s website are in English only, as asserted by the Complainant, which suggests to the Panel that the Respondent has knowledge of the English language;\r\n\r\n(iii) the language(s) of the parties: the Complainant is originally from Denmark and the Respondent appears to reside in China;\r\n\r\n(iv) the Respondent’s behaviour (prior to, and in the course of the proceedings): the Panel notes that the Respondent has shown no inclination to participate in the proceedings; the Respondent did not respond to the Complainant’s cease-and-desist letter, nor did it file a Response;\r\n\r\n(v) the Panel’s overall concern with due process: the Panel has discharged its duty under Rule 10 (c) of the UDRP Rules; and\r\n\r\n(vi) the balance of convenience: while determining the language of proceedings, the Panel has a duty to consider who would suffer the greatest inconvenience as a result of the Panel’s determination. On the one hand, the determination of English as the language of proceedings – a widely spoken language – is unlikely to cause the Respondent any inconvenience, not the least given the Respondent’s default and overall disinterest throughout the proceedings. The determination of Chinese as the language of proceedings, on the other hand, is very likely to cause the Complainant inconvenience, and to interfere with the overall due expedition of the proceedings under the UDRP Rules.\r\n\r\n\r\nIn view of the above factors, the Panel has decided to accept the Complainant’s language request, such that the decision in the present matter will be rendered in English. \r\n\r\nThe Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.",
    "decision": "Accepted",
    "panelists": [
        "Yana Zhou"
    ],
    "date_of_panel_decision": "2022-03-28 00:00:00",
    "informal_english_translation": "The Complainant relies upon the following registered trade marks, amongst others:\r\n\r\n• International registration no. 731917, designating China, registered 20 March 2000, for the mark ARLA, in classes 1, 5, 29, 30, 31 and 32 of the Nice Classification; \r\n\r\n• International registration no. 990596, designating China, registered 8 September 2008, for the figurative mark ARLA, in classes 1, 5, 29, 30, 31 and 32 of the Nice Classification; \r\n\r\n• Chinese trade mark registration no. 5174319, registered 21 March 2009, for the mark ARLA FOODS, in class 29 of the Nice Classification;\r\n\r\n• EU trade mark registration no. 018031231, registered 6 September 2019, for the mark ARLA, in classes 1, 5, 9, 16, 29, 30, 32, 35, 39, 41, 42, 43, 44 and 45 of the Nice Classification; and\r\n\r\n• Danish trade mark registration no. VR200001185, registered 6 March 2000, for the mark ARLA FOODS, in classes 1, 5, 29, 30, 31 and 32 of the Nice Classification. \r\n\r\n(hereinafter, collectively or individually, the Complainant’s trade marks; the ARLA trade mark and the trade mark ARLA interchangeably; and the ARLA FOODS trade mark and the trade mark ARLA FOODS interchangeably).  ",
    "decision_domains": {
        "ARLAFOODS.SHOP": "TRANSFERRED"
    },
    "panelist": null,
    "panellists_text": null
}