Decision

On August 9, 2023, sole panelist Luca Barbero, appointed by the WIPO Arbitration and Mediation Center, denied in its entirety the complaint filed by Avícola Villalobos, S.A. and CMI IP Holding in Case No. D2023-2465, confirming that the registration and use of the domain casoavicola.com constitute legitimate noncommercial fair use under the Uniform Domain-Name Dispute-Resolution Policy (UDRP).

Procedural Background

The complaint was filed on June 7, 2023. Avícola Villalobos, S.A., a Guatemalan poultry processing company owned by Corporación Multi Inversiones (CMI), served as the first complainant. CMI IP Holding, a Luxembourg entity holding the registered trademarks POLLO CAMPERO, DON POLLO, ALIANSA, and MOLINOS MODERNOS, served as the second complainant. Both entities were represented by Consortium Legal of Guatemala. The domain casoavicola.com had been registered on October 20, 2022, and resolved to a website publishing information about publicly available litigation involving the complainants. The Center formally notified the respondent on June 21, 2023, and the response was filed on July 19, 2023 following a deadline extension.

Panel's Analysis

On confusing similarity. The complainants alleged that the domain was confusingly similar to their trade name AVICOLA VILLALOBOS AV Y DISEÑO, registered with the Industrial Property Registry of Guatemala since 1979. The panel observed that the complainants provided only evidence of the registration of the full trade name and a website screenshot, without demonstrating standalone use of the sign AVICOLA as a distinctive identifier that consumers associate with their goods or services. Under section 3.1 of the WIPO Overview 3.0, conclusory allegations of unregistered or common law rights, without specific evidence of acquired distinctiveness (secondary meaning), do not suffice. The panel noted that the most distinctive element of the trade name is "Villalobos," not "avícola," and that the domain is composed of two generic dictionary words ("caso" and "avicola") not exclusively referable to the complainants.

On rights or legitimate interests and bad faith. The panel found that the respondent's use of the domain constitutes legitimate noncommercial or fair use under the Policy, based on three grounds: (i) the composition of the domain using generic dictionary terms; (ii) the website content focused on providing information about litigation that actually occurred; and (iii) the absence of evidence that the respondent had used the domain as a pretext for commercial gain or other benefit. The panel also determined that the domain's composition does not falsely suggest affiliation with the complainants, citing sections 2.4 and 2.5 of the WIPO Overview 3.0.

"The Panel finds that the Respondent's use of the disputed domain name can be considered a legitimate noncommercial or fair use under the Policy." (Page 5)

Ruling

• The complaint filed by Avícola Villalobos, S.A. and CMI IP Holding was denied in its entirety
• The domain casoavicola.com remains under the respondent's registration
• The panel's conclusions were reached without prejudice to the complainants' rights concerning alleged copyright images published on the respondent's website

Legal Basis

• Uniform Domain-Name Dispute-Resolution Policy (UDRP), paragraph 4(a) — Establishes the three elements that the complainant must prove: confusing similarity, lack of respondent's rights or legitimate interests, and registration and use in bad faith
• UDRP Rules, paragraphs 2, 4, 5, 10(b), 10(c), 11(a), and 15(a) — Govern procedure, notifications, deadlines, language of proceedings, and decision criteria
• WIPO Overview 3.0, sections 1.7, 2.4, 2.5, and 3.1 — Criteria on confusing similarity, nominative fair use, false affiliation, and establishing rights in unregistered marks

Signatories

• Luca Barbero, Sole Panelist