Westmore · UDRP DecisionAlrafoods.com
The Panel ordered transfer of <alrafoods.com>. It found the domain confusingly similar to the Complainant’s ARLA mark because the reversal of “lr” was typosquatting and the domain remained visually and phonetically similar to the mark. The Respondent lacked rights or legitimate interests, and the domain had been registered and used in bad faith, including through emails purporting to come from the Complainant and requesting payment of a false invoice.
The timeline behind alrafoods.com
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This decision illustrates how a transposed-letter typo combined with a business-related term can satisfy confusing similarity, particularly where the domain is used for email impersonation. The false-invoice evidence served multiple functions: it undermined any claim to legitimate use, indicated targeting of the Complainant, and supported fraudulent and deceptive bad-faith use.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Arla Foods Amba v. Niki Leo, Hand Trowel Inc. Case No. D2016-1074 1. The Parties The Complainant is Arla Foods Amba of Viby J, Denmark, represented by BrandIT GmbH, Switzerland. The Respondent is Niki Leo, Hand Trowel Inc. of Cape Town, South Africa. 2. The Domain Name and Registrar The disputed domain name <alrafoods.com> is registered with PDR Ltd. d/b/a PublicDomainRegistry.com (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 31, 2016. On May 31, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On June 2, 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. 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 of the Complaint, and the proceedings commenced on June 9, 2016. In accordance with the Rules, paragraph 5, the due date for Response was June 29, 2016. The Respondent did not submit any response. Accordingly, the Center notified The Respondent’s default on June 30, 2016. The Center appointed Clive Duncan Thorne as the sole panelist in this matter on July 8, 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 cooperatively owned by 13,500 dairy farmers. The Complainant has dairy operations worldwide, including the African continent, where it operates in Nigeria, the Ivory Coast and Senegal. In the case of Senegal the Complainant signed a Joint Venture Agreement with the Attieh Group in 2015 by which the Company expects to build annual revenue of EUR 32 million by 2020. In Nigeria the Complainant operates under the domain name “www.arla.ng”. In 2015 the Complainant signed a Joint Venture Agreement with the Tolaram Group by which it expects to grow its revenue to EUR 240 million by 2020. The Complainant’s global revenue reached EUR 10.3 billion in 2015 and has over 19,000 employees located worldwide. Further information about the Complainant and its activities is set out at Annex 6 to the Complaint. The Complainant is the owner of the registered trademark ARLA as a word mark in numerous countries throughout the world including in South Africa where the Respondent and its administrative contact resides. Examples include South African trademark registration No. 2008/21959 (registered in 2010) and South African trademark registration No. 2000/03976 (registered in 2005). These trademark registrations predate the Respondent’s registration of the disputed domain name on April 6, 2016. The Complainant has registered a number of domain names under generic Top-Level Domains (“gTLD”) and country code Top-Level Domains (“ccTLD”) containing the words “Arla” and “Arla Foods”. Examples include <arla.ng>, <arla.co.za>, <arlafoods.co.za>, <arlafoods.com> and <arla.com>. The Complainant is using its domain names to connect with its website through which it informs potential customers about its trademarks and its products and services. In the absence of a Response the Panel finds the evidence adduced by the Complainant and set out above to be true and proceeds to determine the dispute on the basis of this evidence. 5. Parties’ Contentions A. Complainant 1. The Complainant submits that the disputed domain name incorporated the Complainant’s registered trademark ARLA and that the domain name in dispute is confusingly similar to the Complainant’s trademark ARLA. 2. The Complainant has no rights or legitimate interests in respect of the domain name. There is no evidence that the Respondent is commonly known by the domain name nor has a history of using or preparing to use the domain name in connection with a bona fide offering of goods or services. 3. On the evidence the domain name was registered and is being used in bad faith. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant submits that the disputed domain name directly incorporates the Complainant’s registered trademark ARLA. Even though the letters “lr” are reversed when used in the disputed domain name this is an example of “typo-squatting”. The Complainant refers to Boehringer Ingelheim Pharma GmbH & Co. KG v. Name Redacted , WIPO Case No. D2012-0890 . In a similar set of circumstances the Panel found that the typo-squatting disputed domain name was similar to the trademark of the Complainant both phonetically and visually, which gave rise to a finding that the disputed domain name is similar to the Complainant’s mark. Following that panel decision and in the absence of any evidence to the contrary from the Respondent the Panel is prepared to accept that the disputed domain name with the exception of the gTLD element “.com” (which typically does not add any distinctiveness to the domain name) is confusingly similar, both phonetically and visually to the Complainant’s mark ARLA. Accordingly, the Complainant has made out the first element of the Policy. B. Rights or Legitimate Interests There is no evidence before the Panel that the Respondent is commonly known by the disputed domain name. The WhoIs entry “Niki Leo” is the only evidence which relates the Respondent to the domain name. When the marks “Arla” and “Arla Foods” are searched for on Google the results point only to the Complainant and its business activity. There is no evidence that the Respondent has a history of using or preparing to use the disputed domain name in connection with a bona fide offering of goods or services. There is evidence from the Complainant that the Respondent contacted the Complainant’s distributer by sending unsolicited emails from the manipulated email address of [***]@alrafoods.com where the distributor was requested to pay for a false invoice. The sender of the email requested the payment of the invoice by copying email addresses of existing employees of the Complainant. The Complainant submits that this is evidence that the Respondent is attempting to take undue advantage from the registration of the domain name which is confusingly similar in all aspects with the Complainant. Following this the Complainant contacted the Registrar on May 3, 2016 and explained that the domain name was being used fraudulently and asked the Registrar to take it down. As a consequence on May 12, 2016 the Complainant obtained confirmation from the Registrar that the disputed domain name had been suspended. In any event the Complainant maintains the disputed domain name is being used to send emails purporting to be from the Complainant and that the Respondent is attempting to pass itself off as the Complainant. In the Panel’s view this amounts to sufficient evidence that the Respondent has no rights or legitimate interests in respect of the disputed domain name. C. Registered and Used in Bad Faith The Complainant submits that because its trademark ARLA predates significantly the registration of the domain name, that it is unlikely that the Respondent was not aware of the Complainant’s marks when it registered the disputed domain name. The Complainant also relies upon the evidence set out in section 5B above as forming the basis on which the Complainant requested the Registrar to take down the disputed domain name. It relies upon the fact that the disputed domain name has been used to send emails in the name of the Complainant’s employees. This constitutes evidence of an attempt to use the domain name fraudulently and deceptively. There being no evidence to the contrary from the Respondent and given all the circumstances set out above the Panel finds sufficient evidence to demonstrate that the disputed domain name was registered and is being used in bad faith. 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 <alrafoods.com> be transferred to the Complainant. Clive Duncan Thorne Sole Panelist Date: July 20, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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