{ "case_number": "CAC-UDRP-105097", "time_of_filling": "2023-01-02 09:48:01", "domain_names": [ "arlamanager.com" ], "case_administrator": "Olga Dvořáková (Case admin)", "complainant": [ "Arla Food amba" ], "complainant_representative": "BRANDIT GmbH", "respondent": [ "Seth Aikens" ], "respondent_representative": null, "factual_background": "

The Complainant is the fifth-largest dairy company in the world and a cooperative owned by more than 12,500 dairy farmers. Founded in 2000 by the merger of the largest Danish dairy cooperative MD Foods with its Swedish counterpart Arla ekonomisk Förening. The Complainant employs 119,190 people across 105 countries and generated a global revenue of EUR 11,2 billion in 2021. It sells its milk-based products under several brands, including ARLA, LURPAK, CASTELLO and APETINA. The Complainant has a strong presence also on the US market (where the Respondent is located), operating through its subsidiary Arla Foods Inc. Its products in the US are produced by its own dairy plant with over 100 employees. The Complainant enjoys a strong online presence through its official websites and social media accounts. The Complainant's website <arlausa.com> is dedicated to consumers in the US. Due to the extensive use, advertising and revenue associated with its ARLA Trademark worldwide, the Complainant enjoys a high degree of renown around the world.<\/p>\n

The disputed domain name <arlamanager.com> was registered with privacy \/ proxy service on 22 June 2022. It resolves to a pay-per-click (PPC) page displaying links related to the Complainant's business.<\/p>\n

The Complainant sent a cease and desist letter to the Respondent without obtaining response.<\/p>\n

The Complainant contends that the disputed domain name is confusingly similar to its trademark, since the ARLA Trademark is reproduced in its entirety, and the addition of the descriptive term \"manager\" does not prevent the likelihood of confusion between the disputed domain name and the Complainant's trademark. <\/span><\/p>\n

The Complainant also contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. <\/span>Neither license nor authorization has been granted to the Respondent to make any use of the Complainant’s trademark, or apply for registration of the disputed domain name by the Complainant. There is no evidence that the Respondent has been commonly known by the disputed domain name or has acquired any rights in a trademark or trade name corresponding to the disputed domain name. <\/span>Considered that the disputed domain name resolves to a PPC page with links related to the Complainant's business, the Complainant contends that such use neither <\/span>constitutes a bona fide offering of goods or services, nor a legitimate noncommercial or fair use without intent for commercial gain to misleadingly divert consumers or to tarnish the ARLA Trademark<\/span>.<\/p>\n

Finally, the Complainant contends that the registration of disputed domain name confusingly similar to the Complainant's well-known trademark and, thus, the constructive knowledge on behalf of the Respondent of the Complainant’s potential rights, as well as the use of the privacy shield and the redirection of the disputed domain name to a PCC page with links related to Complainant's business clearly shows the Respondent’s bad faith in the registration and use of the disputed domain name. <\/span><\/p>\n

Therefore, the Complainant requests the transfer of the disputed domain name.<\/span><\/p>\n

The Respondent is an individual residing in the US. <\/span><\/p>\n

The Respondent asserts that the disputed domain name is being used for internal management purposes and the access to the associated website is blocked by a login wall with a username and password and restricted to authorized personnel when operational. The Respondent contends that the website was expected to be launched on 15 January 2023 and until such date the Respondent did not intend to connect the disputed domain name to the Internet. The Respondent claims that it has no control over the PPC page and has not profited from any ad displayed on the website to which the disputed domain name resolves.<\/span><\/p>\n

<\/span>The Respondent contends that the disputed domain name, which is not being used in any commercial activity, is not confusingly similar to the ARLA Trademark. The Respondent claims that the disputed domain name is not indexed on Google. It does not appear in Google's search results for any query, which means that it is not being actively searched for by Internet users. Therefore, according to the Respondent the consumers are unlikely to come across the disputed domain name through a search on Google, and therefore it is unlikely that they will be confused by it.<\/p>\n

The Respondent contends to have rights or legitimate interests to the disputed domain name. The Respondent asserts to make legitimate use of the disputed domain name for internal management purposes and not for offering goods and service to the public. The Respondent claims to act in good faith and to have explained its legitimate activity with the use of the term \"arla\" or \"early girl\" in an email sent to the Complainant in 2020 in response to the Complainant's cease and desist letter concerning 7 other domain names. <\/p>\n

The Respondent contends to have chosen the word \"arla\" because of its meaning \"early girl\", which is related to his daughters' names, and not with malicious or exploitative intent directed towards the Complainant.<\/p>\n

Moreover, the Respondent contends that the use of a privacy service is a common practice, and it is not a crime or a presumption that he is attempting to hide from the Complainant.<\/p>\n

Therefore, the Complainant requests the rejection of the Complaint with prejudice.<\/p>\n

Moreover, the Respondent has made contentions that the Complaint was brought in bad faith and to harass the Respondent and, thus, he requests the finding of reverse domain name hijacking (RDNH).<\/span><\/p>", "other_legal_proceedings": "

The Panel is not aware of any other legal proceedings which are pending or decided and which relate to the disputed domain name.<\/p>", "no_response_filed": null, "rights": "

The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).<\/p>", "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).<\/p>", "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).<\/p>", "procedural_factors": "

The 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.<\/p>\n

LANGUAGE OF THE PROCEEDING<\/span>

Pursuant to paragraph 11(a) of the UDRP Rules, unless otherwise agreed by the parties, the language of the administrative proceeding is the language of the registration agreement, subject to the authority of the panel to determine otherwise, having regard to the circumstances of the administrative proceeding.<\/span>

The Complaint was submitted in English. Upon the CAC's request for registrar verification, the registrar of the disputed domain name confirmed that the language of the registration agreement was English.<\/span>

Considered the above-mentioned provision of the UDRP Rules, the principle that the administrative proceeding shall be conducted with due expedition while ensuring that the parties are treated with equality, as well as the fact that the Respondent is residing in the US and has submitted his Response in English, which clearly evidences that he understands the language of the Complaint and has been given a fair opportunity to present its case, the Panel determines that the language of the present administrative proceeding shall be English.<\/span><\/p>\n

PARTIES' UNSOLICITED SUPPLEMENTAL FILINGS<\/p>\n

The UDRP Rules in principle provide only for a single round of pleadings, and do not contemplate discovery as such. Paragraphs 3(b)(ix) and (xiv) provide that the complaint shall describe the grounds on which the complaint is made and annex any documentary or other evidence upon which the complainant relies. At the same pace, paragraphs 5(c)(i) and (ix) provide that t<\/span>he response, including any annexes, shall respond specifically to the statements and allegations contained in the complaint, include any and all bases for the respondent to retain registration and use of the disputed domain name, and annex any documentary or other evidence upon which the respondent relies.<\/span> The parties are, thus, required to include specific evidence supporting their assertations in the complaint and the response. A panel’s assessment will normally be made on the basis of the evidence presented in the complaint and any filed response. Conclusory statements unsupported by evidence will normally be insufficient to prove a party’s case.<\/span><\/span><\/p>\n

Noting that the UDRP normally provides for a single round of pleadings without opportunity for discovery, panels have expressed an expectation that a complainant should anticipate and address likely plausible respondent defenses with supporting arguments and evidence in its complaint. To the extent a response raises defenses that could not reasonably have been anticipated, a complainant may request that the panel provide an opportunity to address such unanticipated defenses in a supplemental filing, which may also include a rebuttal opportunity for the respondent (paragraph 3.1 of WIPO Overview 3.0).<\/span><\/span><\/p>\n

Paragraph 12 of the UDRP Rules expressly provides that it is for the panel to request, in its sole discretion, any further statements or documents from the parties it may deem necessary to decide the case. Unsolicited supplemental filings are generally discouraged, unless specifically requested by the panel. Panels have also repeatedly affirmed that the party submitting or requesting to submit an unsolicited supplemental filing should clearly show its relevance to the case and why it was unable to provide the information contained therein in its complaint or response (e.g., owing to some “exceptional” circumstance) (paragraph 4.6 of WIPO Overview 3.0).<\/span><\/p>\n

In the present case, the Complainant has submitted an unsolicited supplemental filing commenting the Response and, in particular the Respondent's assertion that the parties had exchanged email correspondence and, therefore, the Complainant was aware of the Respondent's identity and his rights and legitimate interests in the disputed domain name. While the Respondent has not provided any documentary evidence to support this assertion, the Complainant, in its supplemental filing, has submitted the email correspondence exchanged with the Respondent in 2020 (two years before the registration of the disputed domain name) concerning other domain names, all incorporating the term \"arla\" plus generic or descriptive terms. The Complainant has also argued that, due to the privacy shield, it was unaware that the Respondent was the underlying registrant of the disputed domain name at the time of filing of the Complaint. The Panel considers that the material in the Complainant's supplemental filing is relevant to the determination of this matter and, given that the Respondent has commented on this filing with an unsolicited supplemental filing, the Panel admit both parties' supplemental filings. The relevance, materiality and weight of the parties' assertations and evidence (or lack of evidence) supporting such assertions will be discussed below.<\/span><\/p>", "decision": "Accepted", "panelists": [ "Ivett Paulovics" ], "date_of_panel_decision": "2023-02-21 00:00:00", "informal_english_translation": "

The Complaint has sufficiently demonstrated that it has been carrying on its business activities under the trade and company name Arla Foods since 2000.<\/p>\n

It has also demonstrated to own several trademark registrations containing the term \"arla\", among which:<\/p>\n