WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
Nantucket Allserve, Inc., v. Company Require/Diana Hart
Case No. D2006-0578
1. The Parties
The Complainant is Nantucket Allserve, Inc., Birmingham, United Kingdom of Great Britain and Northern Ireland, represented by Willoughby & Partners, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Company Require/Diana Hart, Null, Germany.
2. The Domain Name and Registrar
The disputed domain name is registered with Visesh Infotecnics Ltd. d/b/a S.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 8, 2006. On May 9, 2006, the Center transmitted by email to Visesh Infotecnics Ltd. d/b/a S a request for registrar verification in connection with the domain name at issue. On May 23, 2006, Visesh Infotecnics Ltd. d/b/a S transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 30, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was June�19,�2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on June�21,�2006.
The Center appointed Johan Sj�beck as the sole panelist in this matter on June�29,�2006. 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 has provided evidence regarding the registered trademark NANTUCKET NECTARS in the United States of America with registration number 2441757, registered on April�10,�2001.
The disputed domain name was registered on January�21,�2005.
5. Parties’ Contentions
A. Complainant
The Complainant is a Massachusetts corporation with its principal place of business in New York, United States of America. It is a member of the group of companies headed by Cadbury Schweppes plc of the United Kingdom of Great Britain and Northern Ireland.
The disputed domain name features the Complainant’s trademark NANTUCKET NECTARS, but without the space between the words since the space character is not permissible in domain names. The domain name is identical or confusingly similar to the trademark in which the Complainant has rights.
The Complainant’s trademark is a unique combination of words and has never been previously used by anybody. The name was created by the founders of the Complainant’s business, Tom First and Tom Scott, about 15 years ago. The business started out as a delivery service to boat owners in the Nantucket area of the United States off the coast of Massachusetts. They developed fresh juice products as NANTUCKET NECTARS and quickly the business developed into a substantial business. The annual turnover for the last three years exceeds US$ 40 million and advertising expenditure for 2005 topped US$ 2 million.
A search on Google for the term NANTUCKET NECTARS produces about 80,000 hits, the vast majority of which are references to the Complainant.
Although the disputed domain name connects to a directory website having nothing to do with the Complainant, it is noteworthy that the homepage is headed “Massachusetts Listings”, Massachusetts being the original home of the Complainant.
The Complainant submits that the Respondent is using the disputed domain name featuring the Complainant’s trademark for a commercial purpose by attracting Internet users and thus maximizes “revenue per click” income. The Respondent’s use cannot constitute a bona fide business offering.
On March 22, 2006, the Complainant wrote to the Respondent and requested a transfer of the disputed domain name but the Respondent failed to respond. The Respondent is intentionally attempting to attract, for commercial gain, Internet users to its website by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website.
B. Respondent
The Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings
According to paragraph 4 (a) of the Policy, the Complainant must prove each of the following:
(i) that the Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the domain name; and
(iii) that the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant is, according to the submitted evidence, the owner of the registered trademark NANTUCKET NECTARS. The space character is not permissible in domain names due to technical reasons and should normally not be taken into consideration when doing comparisons between trademarks and domain names. The disputed domain name incorporates the Complainant’s trademark in its entirety.
Having the above in mind, it is the opinion of the Panel that the domain name is identical to the Complainant’s trademark NANTUCKET NECTARS in which the Complainant has rights.
B. Rights or Legitimate Interests
The Complainant has not licensed or otherwise consented to the Respondent’s use of its trademark NANTUCKET NECTARS in connection with the disputed domain name which is identical to the trademark. No evidence or circumstances in the case indicate that the Respondent has been commonly known by the disputed domain name.
The evidence submitted by the Complainant indicates that the Respondent’s use of the disputed domain is of a commercial nature through a so called “revenue per click” advertisement program. Thus, the Respondent’s use of the domain name is likely to attract, for commercial gain, Internet users searching for the Complainant’s website or trademark.
Such commercial use of the disputed domain name which is likely to lead to confusion of Internet users does not constitute a bona fide offering of goods or services nor does it constitute a legitimate non-commercial or fair use of the domain name.
There is no evidence in the case that refute the Complainant’s submissions, and the Panel concludes that the Complainant has also proved the requirement under paragraph�4(a)(ii) of the Policy.
C. Registered and Used in Bad Faith
Under paragraph 4(b) of the Policy, evidence of bad faith registration and use include:
(i) circumstances indicating the domain name was registered or acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the owner of a trademark or to a competitor of the trademark owner, for valuable consideration in excess of the documented out-of-pocket costs directly related to the domain name; or
(ii) circumstances indicating that the domain name were registered in order to prevent the owner of a trademark from reflecting the mark in a corresponding domain name, provided it is a pattern of such conduct; or
(iii) circumstances indicating that the domain name was registered primarily for the purpose of disrupting the business of a competitor; or
(iv) circumstances indicating that the domain name has intentionally been used in an attempted to attract, for commercial gain, Internet users to a website or other on-line location, by creating a likelihood of confusion with a trademark as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on a website or location.
The evidence submitted shows that the disputed domain name is used for a directory listing with the heading “Massachusetts Listings” and that the use is commercial due to the “revenue per click” advertising program.
Given the fact that the directory listings on the Respondent’s website is headed “Massachusetts Listings” and that Massachusetts is the original home of the Complainant, the Panel finds it highly unlikely that the Respondent would not have been aware of the Complainant’s trademark NANTUCKET NECTARS when registering and using the disputed domain name .
Furthermore, it has been shown that the Complainant sent a letter to the Respondent, on March 22, 2006, and that the Respondent failed to respond.
The circumstances in the case before the Panel indicate that the disputed domain name has intentionally been used in an attempt to attract, for commercial gain, Internet users to the Respondent’s website or other on-line location, by creating a likelihood of confusion with the trademark NANTUCKET NECTARS as to the source, sponsorship, affiliation, or endorsement of the website or location or of a product or service on a website or location. There is no evidence in the case that refute the Complainant’s submissions.
Having all of the above in mind, the Panel concludes that the Complainant has proved the requirements under paragraph�4(b) of the Policy and that the domain name has been registered and used in bad faith.
7. Decision
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name , be transferred to the Complainant.
Johan Sj�beck
Sole Panelist
Dated: July 13, 2006
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