DECISION

 

ROYAL LACTALIS LEERDAMMER B.V. v. Dylan Alfaro

Claim Number: FA2311002069433

PARTIES

Complainant is ROYAL LACTALIS LEERDAMMER B.V. ("Complainant"), represented by Enora Millocheau of NAMESHIELD, France. Respondent is Dylan Alfaro ("Respondent"), USA.

 

REGISTRAR AND DISPUTED DOMAIN NAME

The domain name at issue is <leerdammer.us>, registered with Dynadot Inc.

 

PANEL

The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.

 

Charles A. Kuechenmeister, Panelist.

 

PROCEDURAL HISTORY

Complainant submitted a Complaint to Forum electronically on November 3, 2023; Forum received payment on November 3, 2023.

 

On November 3, 2023, Dynadot Inc confirmed by e-mail to Forum that the <leerdammer.us> domain name (the "Domain Name") is registered with Dynadot Inc and that Respondent is the current registrant of the name. Dynadot Inc has verified that Respondent is bound by the Dynadot Inc registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with the U.S. Department of Commerce's usTLD Dispute Resolution Policy (the "Policy").

 

On November 6, 2023, Forum served the Complaint and all Annexes, including a Written Notice of the Complaint setting a deadline of November 27, 2023 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@leerdammer.us. Also on November 6, 2023, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts.

 

Having received no Response from Respondent, Forum transmitted to the parties a Notification of Respondent Default.

 

On November 28, 2023, pursuant to Complainant's request to have the dispute decided by a single-member Panel, Forum appointed Charles A. Kuechenmeister as Panelist.

 

Having reviewed the communications records, the Administrative Panel (the "Panel") finds that Forum has discharged its responsibility under Paragraph 2(a) of the Rules to the usTLD Dispute Resolution Policy ("Rules"). Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the usTLD Policy, usTLD Rules, Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.

 

RELIEF SOUGHT

Complainant requests that the Domain Name be transferred from Respondent to Complainant.

 

PARTIES' CONTENTIONS

A. Complainant

Complainant produces dairy products, and particularly its Leerdammer cheese. It has rights in the LEERDAMMER mark based upon its international registration of that mark in accordance with the Madrid Protocol. Respondent's <leerdammer.us> Domain Name is identical or confusingly similar to Complainant's mark. It incorporates the LEERDAMMER mark in its entirety, merely adding the country code top-level domain ("ccTLD") ".us."

 

Respondent has no rights or legitimate interests in the Domain Name. Respondent is not affiliated or associated with Complainant and Complainant has not authorized or licensed Respondent to use the LEERDAMMER mark, Respondent is not commonly known by the Domain Name, and it is not using the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead has only offered it for sale.

 

Respondent registered or uses the Domain Name in bad faith. It registered the Domain Name with actual knowledge of Complainant, and it is making no active use of the Domain Name other than offering it for sale at prices that exceed the direct costs associated with it.

 

B. Respondent

Respondent did not submit a Response in this proceeding.

 

FINDINGS

Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."

 

Paragraph 4(a) of the Policy requires a complainant to prove each of the following three elements to obtain an order cancelling or transferring a domain name:

 

(1)       the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(2)       the respondent has no rights or legitimate interests in respect of the domain name; and

(3)       the domain name has been registered or is being used in bad faith.

 

Given the similarity between the Uniform Domain Name Dispute Resolution Policy ("UDRP") and the usTLD Policy, the Panel will draw upon UDRP precedent as applicable in rendering its decision.

 

In view of Respondent's failure to submit a Response, pursuant to paragraphs 5(f), 14(a) and 15(a) of the Rules the Panel will decide this administrative proceeding on the basis of Complainant's undisputed representations and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules.  The Panel is entitled to accept all reasonable allegations set forth in a complaint as true unless the evidence is clearly contradictory. Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Forum July 31, 2000) (holding that the respondent's failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true). Nevertheless, the Panel may deny relief where a complaint contains mere conclusory or unsubstantiated arguments. eGalaxy Multimedia Inc. v. ON HOLD By Owner Ready To Expire, FA 157287 (Forum June 26, 2003) ("Because Complainant did not produce clear evidence to support its subjective allegations [. . .] the Panel finds it appropriate to dismiss the Complaint"), WIPO Overview 3.0, at ¶ 4.3 ("In cases involving wholly unsupported and conclusory allegations advanced by the complainant, . . . panels may find that—despite a respondent's default—a complainant has failed to prove its case.").

 

The Panel finds as follows with respect to the matters at issue in this proceeding.

 

Identical and/or Confusingly Similar

The LEERDAMMER mark was registered to Complainant in accordance with the Madrid Protocol (Reg. No. 465749) on 17 December 1981 (WIPO printout included in Complaint Annex 2). Complainant's international registration of its mark establishes its rights in that mark for the purposes of Policy ¶ 4(a)(i).  Bittrex, Inc. v. Domain Privacy Services, FA 1786849 (Forum June 15, 2018) (finding Complainant has trademark rights in the BITTREX mark through registration of the mark with the EUIPO and the USPTO.). 

 

Respondent's <leerdammer.us> Domain Name is identical or confusingly similar to Complainant's mark. It fully incorporates the mark, merely adding ".us" ccTLD. This change does not distinguish the Domain Name from Complainant's mark for the purposes of Policy ¶ 4(a)(i).   CloudFlare, Inc. v. [Registrant], FA 1624251 (Forum Aug. 1, 2015) ("The inclusion of a ccTLD does not alleviate the similarity between a mark and a disputed domain name as per Policy ¶ 4(a)(i).").  The WIPO Overview 3.0, at ¶ 1.7, states that the test for confusing similarity "typically involves a side-by-side comparison of the domain name and the textual components of the relevant trademark to assess whether the mark is recognizable within the domain name."  Notwithstanding the change described above, Complainant's mark is clearly recognizable within the Domain Name, and the Domain Name is likely to cause confusion.

 

For the reasons set forth above, the Panel finds that the Domain Name is identical or confusingly similar to the LEERDAMMER mark, in which Complainant has substantial and demonstrated rights. 

 

Rights or Legitimate Interests

If a complainant makes a prima facie case that the respondent lacks rights or legitimate interests in the domain name under Policy ¶ 4(a)(ii), the burden of production shifts to respondent to come forward with evidence that it has rights or legitimate interests in it. Neal & Massey Holdings Limited v. Gregory Ricks, FA 1549327 (Forum Apr. 12, 2014) ("Under Policy ¶ 4(a)(ii), Complainant must first make out a prima facie case showing that Respondent lacks rights and legitimate interests in respect of an at-issue domain name and then the burden, in effect, shifts to Respondent to come forward with evidence of its rights or legitimate interests"). If a respondent fails to come forward with such evidence, the complainant's prima facie evidence will be sufficient to establish that respondent lacks such rights or legitimate interests. If the respondent does come forward with such evidence, the Panel must assess the evidence in its entirety. At all times, the burden of proof remains on the complainant. WIPO Overview 3.0, at ¶ 2.1.

 

Policy ¶ 4(c) lists the following four nonexclusive circumstances, any one of which if proven can demonstrate a respondent's rights or legitimate interests in a domain name for the purposes of Policy ¶ 4(a)(ii):

 

(i)                      The respondent is the owner or beneficiary of a trade or service mark that is identical to the domain name;

(ii)                      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;

(iii)                      The respondent (as an individual, business or other organization) has been commonly known by the domain name, even if the respondent has acquired no trademark or service mark rights; or

(iv)                      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 trademark or service mark at issue.

 

Complainant states that Respondent has no rights or legitimate interests in the Domain Name because (i) it is not affiliated or associated with Complainant and Complainant has not authorized or licensed Respondent to use the LEERDAMMER mark, (ii) Respondent is not commonly known by the Domain Name, and (iii) Respondent is not using the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial or fair use but instead has only offered it for sale. These allegations are addressed as follows:

 

Complainant did not expressly address the Policy ¶ 4(c)(i) factor, concerning whether the Respondent is the owner or beneficiary of a trade or service mark that is identical to the Domain Name. It did, however, offer evidence of a Google search of the LEERDAMMER mark, the results of which referred only to Complainant (Complaint Annex 6). This is persuasive evidence that Respondent is not owner or beneficiary of a trade or service mark that is identical to the Domain Name. Further, Complainant has registered its mark internationally in accordance with the Madrid Protocol (WIPO printout submitted as Complaint Annex 2). In light of Complainant's international registration, it is extremely unlikely that any governmental trademark agency would register a trademark identical to <leerdammer.us> or any other mark identical or similar to the Domain Name in the name of any person other than Complainant or one of its affiliates, or that Respondent could be the owner or beneficiary of a valid common law trade or service mark identical to the Domain Name. On this evidence, and in the absence of any evidence to the contrary, the Panel finds that Respondent is not the owner or beneficiary of a valid trade or service mark identical to the Domain Name.

 

Complainant states that Respondent is not affiliated with it and that it has not authorized or permitted Respondent to use its mark. Complainant has specific competence to make this statement, and it is unchallenged by any evidence before the Panel. In the absence of evidence that a respondent is authorized to use a complainant's mark in a domain name or that a respondent is commonly known by the disputed domain name, the respondent may be presumed to lack rights or legitimate interests in the domain name. IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant's mark and failed to submit evidence that it is commonly known by the domain name), Indeed, Inc. v. Ankit Bhardwaj / Recruiter, FA 1739470 (Forum Aug. 3, 2017) ("Respondent lacks both rights and legitimate interests in respect of the at-issue domain name. Respondent is not authorized to use Complainant's trademark in any capacity and, as discussed below, there are no Policy ¶ 4(c) circumstances from which the Panel might find that Respondent has rights or interests in respect of the at-issue domain name.").

 

The WHOIS information furnished to the Forum by the registrar lists "Dylan Alfaro" as the registrant of the Domain Name. This name bears no resemblance to the Domain Name. Evidence could, of course, in a given case demonstrate that the respondent is commonly known by a domain name different from the name in which it registered the domain name, e.g., the case of a domain name incorporating the brand name of a specific product offered by and associated with the respondent. In the absence of any such evidence, however, and in cases where no response has been filed, UDRP panels have consistently held that WHOIS evidence of a registrant name which does not correspond with the domain name is sufficient to prove that the respondent is not commonly known by the domain name. Amazon Technologies, Inc. v. Suzen Khan / Nancy Jain / Andrew Stanzy, FA 1741129 (Forum Aug. 16, 2017) (finding that respondent had no rights or legitimate interests in the disputed domain names when the identifying information provided by WHOIS was unrelated to the domain names or respondent's use of the same), Alaska Air Group, Inc. and its subsidiary, Alaska Airlines v. Song Bin, FA1408001574905 (Forum Sept. 17, 2014) (holding that the respondent was not commonly known by the disputed domain name as demonstrated by the WHOIS information and based on the fact that the complainant had not licensed or authorized the respondent to use its ALASKA AIRLINES mark). The Panel is satisfied that Respondent has not been commonly known by the Domain Name for the purposes of Policy ¶ 4(c)(iii).

 

Complaint Annex 5 is a screenshot of the website resolving from the Domain Name. This website is the <dan.com> site, which offers the Domain Name for sale at a price of USD 1,450.00. Respondent is affirmatively advertising and offering the Domain Name for sale to the general public. A general offer of sale is neither a bona fide offering of goods or services within the meaning of Policy ¶ 4(c)(ii) nor a legitimate noncommercial or fair use within the meaning of Policy ¶ 4(c)(iv), and is thus evidence of a lack of rights or legitimate interests. Enterprise Holdings, Inc. v. Huang Jia Lin, FA1504001614086 (Forum May 25, 2015) ("Accordingly, the Panel finds that Respondent's general attempt to sell the disputed domain name is further evidence of Respondent's lack of rights and legitimate interests under Policy ¶ 4(a)(ii)."), Twentieth Century Fox Film Corporation v. Diego Ossa, FA1501001602016 (Forum Feb. 26, 2015) ("The Resolving parked page advertises the sale of the domain name with the message 'Would you like to buy this domain?'  The Panel accepts this offer as demonstrative of Respondent's willingness to sell the disputed domain name, and finds that such behavior provides additional evidence that Respondent lacks rights or legitimate interests in the disputed domain name.").

 

The evidence furnished by Complainant establishes the required prima facie case. On that evidence, and in the absence of any evidence from Respondent, the Panel finds that Respondent has no rights or legitimate interests in the Domain Name.

 

Registration or Use in Bad Faith

Policy ¶ 4(b) sets forth a nonexclusive list of four circumstances, any one of which if proven would be evidence of bad faith use and registration of a domain name. They are as follows:

 

(i)                      circumstances indicating that the respondent has registered or acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant which is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of the respondent's documented out-of-pocket costs directly related to the domain name; or

(ii)                      the respondent has registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name; or

(iii)                      the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or

(iv)         by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to the respondent's web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation or endorsement of the respondent's web site or location or of a product of service on the respondent's web site or location.

 

The evidence of Respondent's conduct discussed above in the rights or legitimate interests analysis also supports a finding of bad faith registration or use, based upon one or more of the foregoing grounds articulated in the Policy and upon additional grounds adopted by UDRP panels over the years. First, Respondent is offering to sell the Domain Name at a price far in excess of its documented out-of-pocket costs directly related to the Domain Name. Its conduct thus fits within the circumstances described in Policy ¶ 4(b)(i) and this is manifest evidence of bad faith.

 

Next, it is evident that Respondent had actual knowledge of Complainant and its mark when it registered the Domain Name in July 2023 (WHOIS printout submitted as Complaint Annex 4 shows creation date).  Complainant has been using its mark at least since the date of its International registration in 1981 (WIPO printout included in Complaint Annex 2). Complainant's LEERDAMMER mark is unique, a coined term which has no meaning other than its association with Complainant. Based upon this evidence, it is clear that Respondent had actual knowledge of Complainant and its rights in the LEERDAMMER mark when it registered the Domain Name. This does not fit within any of the scenarios listed in Policy ¶ 4(b) but that paragraph recognizes that mischief can assume many different forms and takes an open-ended approach to bad faith, listing some examples without attempting to enumerate all its varieties. Worldcom Exchange, Inc. v. Wei.com, Inc., WIPO Case No. D-2004-0955 (January 5, 2005), Bloomberg Finance L.P. v. Domain Admin - This Domain is For Sale on GoDaddy.com / Trnames Premium Name Services, FA 1714157 (Forum Mar. 8, 2017) (determining that Policy ¶ 4(b) provisions are merely illustrative of bad faith, and that the respondent's bad faith may be demonstrated by other allegations of bad faith under the totality of the circumstances). Given the nonexclusive nature of Policy ¶ 4(b), registering a confusingly similar domain name with actual knowledge of a complainant's rights in its mark is evidence of bad faith registration and use for the purposes of Policy ¶ 4(a)(iii).  Univision Comm'cns Inc. v. Norte, FA 1000079 (Forum Aug. 16, 2007) (rejecting the respondent's contention that it did not register the disputed domain name in bad faith since the panel found that the respondent had knowledge of the complainant's rights in the UNIVISION mark when registering the disputed domain name).

 

Finally, as discussed above in the rights and legitimate interests analysis, Respondent is passively holding the Domain Name, making no active use of it other than to offer it for sale. Again, given the nonexclusive nature of Policy ¶ 4(b), passively holding a confusingly similar domain name can be evidence of bad faith for the purposes of Policy ¶ 4(a)(iii).  Caravan Club v. Mrgsale, FA 95314 (Forum Aug. 30, 2000) (finding that the respondent made no use of the domain name or website that connects with the domain name, and that [failure to make an active use] of a domain name permits an inference of registration and use in bad faith).

 

For the reasons set forth above, the Panel finds that Respondent registered and is using the Domain Name in bad faith within the meaning of Policy ¶ 4(a)(iii).

 

DECISION

Complainant having established all three elements required under the usTLD Policy, the Panel concludes that relief shall be GRANTED.

 

Accordingly, it is Ordered that the <leerdammer.us> Domain Name be TRANSFERRED TO COMPLAINANT.

 

 

Charles A. Kuechenmeister, Panelist

December 1, 2023