WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION IBE Business Enterprise, AG v. Dan Ton Case No. D2009-0543 1. The Parties
The Complainant is IBE Business Enterprise, AG of Zug, Switzerland, represented by Arochi, Marroquin & Lindner, S.C., Mexico.
The Respondent is Dan Ton of Texas, United States of America. 2. The Domain Name and Registrar
The disputed domain name is registered with Melbourne IT Ltd. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 24, 2009. On April 27, 2009, the Center transmitted by email to Melbourne IT Ltd a request for registrar verification in connection with the disputed domain name. On April 29, 2009, Melbourne IT Ltd transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details. In response to a notification by the Center that the Complaint was administratively deficient, the Complainant filed an amended Complaint on May 6, 2009. The Center verified that the Complaint together with the amended 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on May 8, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was May 28, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 29, 2009.
The Center appointed Arne Ringnes as the sole panelist in this matter on June 16, 2009. 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
According to Annex 1 of the Complaint by which printouts of “” is provided, the domain name was registered on 2008-07-05.
According to Annex 2 of the Complaint the Complainant is the owner of the following United States (US) trademark registrations:
Registration Number 2563167, Registration Date: April 23, 2002;
Registration Number 2759600, Registration Date: September 2, 2003;
Registration Number 3407837, Registration Date: April 8, 2008;
Registration Number 3188633, Registration Date: December 26, 2006;
Registration Number 3188662, Registration Date: December 26, 2006;
Registration Number 3185480, Registration Date: December 19, 2006;
Registration Number 3188665, Registration Date: December 26, 2006. 5. Parties' Contentions A. Complainant
The Complainant submits that the disputed domain name is identical or confusingly similar to the Registered Trademark 3188633 FRUSION covering Yogurt, yogurt based beverages, Registered Trademark 3188662 FRUSION covering Fruit beverages with yogurt, Registered Trademark 3185480 FRUSION covering Yogurt based beverages and Registered Trademark 3188665 FRUSION covering Fruit beverages with yogurt.
It is alleged that the domain name completely incorporates the trademark FRUSION which is used to protect a famous yogurt brand in the United States of America and the world.
The Complainant further submits that the Respondent has no rights or legitimate interests in respect of the disputed domain name. There is no evidence of 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. Through Internet searches in Google or Yahoo! the Complainant has found that the Respondant has not been commonly known by the domain name. It is obvious that the Respondent is not making a legitimate noncommercial or fair use of the domain name, since there is no use at all.
Further, the Complainant submits that the bad faith registration and passive use is evident in this case. Frusion yogurt has been very successful in the market since 2006. Suddenly the Respondent with no relation with the Complainant registers the domain name 2 years after, and then makes no use whatsoever of the domain name, deliberately blocking the domain name from the Complainant.
In accordance with Paragraph 4(i) of the Policy the Complainant requests the Panel to issue a decision ordering that the disputed domain name be transferred to the Complainant. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel finds that the Complainant on basis of US trademark registrations 3188633, 3188662, 3185480 and 3188665 has rights to the trademark FRUSION which precede the Respondent's registration of the disputed domain name.
The Panel further finds that the domain name is confusingly similar to the Complainant's trademark FRUSION as it incorporates the trademark completely. The addition of the word “yogurt” does not imply that the domain name is distinguished from the trademark with the effect that confusion is avoided since yogurt is the very product that the Complainant uses the trademark in connection with.
In conclusion, the Panel finds that the Complainant has proved that the condition under the Policy, paragraph 4(a)(i) is fulfilled with respect to the disputed domain name. B. Rights or Legitimate Interests
The Respondent has not submitted any evidence supporting that he has rights or legitimate interests in respect of the domain name as a rebuttal of the Complainant's making of a prima facie case that the Respondent lacks rights or legitimate interests in the domain name.
Neither has the Respondent proved that the disputed domain name (i) has been used in a bona fide offering of goods or services; (ii) that he has been commonly known by the domain name; or (iii) that he has been making a legitimate noncommercial or fair use of the domain name, cf. paragraph 4(c) of the Policy.
The Panel cannot find any indications of circumstances that would constitute the Respondent's rights to or legitimate interests in the disputed domain name pursuant to paragraph 4(c) of the Policy or any other circumstances indicating such rights or legitimate interests.
There is currently no active use of the domain name. This in itself does not indicate that the Respondent has rights or legitimate interests in respect of the domain name. Further the Complainant has referred to Internet searches on Google and Yahoo! which has not indicated that the Respondant has been commonly known by the domain name.
On this background the Panel concludes that the Respondent does not have any rights or legitimate interests in respect of the domain name at issue, cf paragraph 4(a)(ii). C. Registered and Used in Bad Faith
According to paragraph 4(b) of the Policy, certain circumstances shall be evidence of the registration and use of a domain name in bad faith. These include in sub-paragraph (i) circumstances indicating that the Respondent has registered the domain name primarily for the “purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration In excess of [Respondent's] documented out-of-pocket costs directly related to the domain name…”.
The Panel finds that in light of the present record it unlikely that the registration of the domain name was a coincidence. The Respondent has not substantiated any rights or legitimate interests in the domain name (cf. paragraph B above) and the domain is not in active use but passively maintained. Based on this the Panel finds it probable on the balance that the domain name has been registered for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant for valuable consideration cf. paragraph 4(b) sub-paragraph (i) of the Policy.
Consequently, the Panel concludes that the Respondent has registered and used the domain name in bad faith, cf paragraph 4(a)(iii). 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.
Arne Ringnes
Sole Panelist
Dated: July 6, 2009
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