WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION The Coca-Cola Company v. Ben Johnson Case No. D2009-1718 1. The Parties
The Complainant is The Coca-Cola Company, of Atlanta, Georgia, United States of America, represented by King & Spalding, United States of America.
The Respondent is Ben Johnson of San Diego, California, United States of America. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with eNom. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 15, 2009. On December 15, 2009, the Center transmitted by email to eNom a request for registrar verification in connection with the Domain Name. On December 15, 2009, eNom. 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(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on December 22, 2009. In accordance with the Rules, paragraph 5(a), the due date for Response was January 11, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on January 14, 2010.
The Center appointed Michelle Brownlee as the sole panelist in this matter on February 2, 2010. 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 owns trademark registrations for the COKE trademark in the United States in connection with soft drinks and a wide variety of other goods, and also owns registrations for the COKE mark in every country in the world that accepts trademark registrations. The Complainant also owns registrations in the United States for the marks MY COKE REWARDS, MYCOKEREWARDS and MYCOKEREWARDS.COM in connection with online customer loyalty incentive program services. 5. Parties' Contentions A. Complainant
The Complainant has been using COKE in connection with the advertising and selling of its products for more than fifty years. The Complainant has acquired goodwill throughout the world in its COKE brand, which is one of the most recognized brands in the world. The COKE trademark has been recognized as famous in numerous UDRP proceedings.
In 2006, the Complainant began offering a consumer rewards program called My Coke Rewards. The Complainant operates this program at the domain name .
The Complainant contends that the Domain Name is confusingly similar to the Complainant's COKE and MYCOKEREWARDS trademarks and that the Respondent has no rights or legitimate interests in the Domain Name. Further, the Complainant contends that that Respondent has registered and is using the Domain Name in bad faith because the Complainant has received reports that the Domain Name was used in connection with fraudulent “phishing” attempts to solicit personal information. B. Respondent
The Respondent did not reply to the Complainant's contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy provides that in order to be entitled to a transfer of a domain name, a complainant must prove the following three elements:
(1) the domain name 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 and is being used in bad faith. A. Identical or Confusingly Similar
The Panel finds that the Domain Name is confusingly similar to the Complainant's MY COKE REWARDS, MYCOKEREWARDS and MYCOKEREWARDS.COM trademarks. The omission of “my” and the addition of “2009” in the Domain Name are minor changes from the trademarks that do not have much effect in reducing the overall similarity between the Domain Name and the trademarks. Moreover, the combination of the COKE mark with “rewards2009” is also confusingly similar to the COKE mark, since the COKE mark is such a famous mark that pairing non-distinctive matter with the mark in a domain name in cases such as this is likely to be perceived as signaling an association with the Complainant. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy provides that a respondent can demonstrate a legitimate interest in a domain name by demonstrating one of the following facts:
(i) before receiving any notice of the dispute, the respondent used or made preparations to use the domain name in connection with a bona fide offering of goods or services; or
(ii) the respondent has been commonly known by the domain name; or
(iii) 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 at issue
The Respondent has not presented evidence that he used or made preparations to use the Domain Name in connection with a bona fide offering of goods or services, that he is commonly known by the Domain Name or that he is making a noncommercial or fair use of the Domain Name. The only evidence of use of the Domain Name in the present record is a screen shot provided by the Complainant, and allegations in the Complaint that Complainant has received reports by the Complainant's customers that they received an email that told them that they had won a contest and a link in the email directed them to a web site at the Domain Name where personal information was solicited from them. This activity is clearly not a bona fide offering of goods or services. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy states that the following circumstances are evidence of registration and use of a domain name in bad faith:
(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 who is the owner of the trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent 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, provided that the respondent has engaged in a pattern of such conduct; 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 its web site or other online location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of its web site or location or of a product or service on its web site or location.
The Complainant has established bad faith under paragraph 4(b)(iv) of the Policy. The Respondent is intentionally using the Domain Name to direct traffic to a web site that solicits personal information by creating confusion as to source and results in commercial gain to the Respondent. The Respondent's registration and use of the Domain Name in connection with fraudulent attempts to collect personal information by creating the false impression that the site was affiliated with the Complainant is a clear indication of bad faith. See, e.g., Confederation Nationale du Credit Mutuel et Commercial S.A. v. Trabaja Jayam Zeb Fi Tarmatek,WIPO Case No. DLC2009-0009. 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.
Michelle Brownlee
Sole Panelist
Dated: February 6, 2010
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