WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION The Coca-Cola Company v. David Vass and British Independent Party Case No. D2009-1741 1. The Parties
The Complainant is The Coca-Cola Company of Atlanta, Georgia, United States of America, represented by Simmons & Simmons, United Kingdom of Great Britain and Northern Ireland.
The Respondents are David Vass and British Independent Party, both of West Lothian, Scotland, United Kingdom of Great Britain and Northern Ireland. 2. The Domain Name and Registrar
The disputed domain name is registered with CentralNic. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on December 21, 2009. On December 21, 2009, the Center transmitted by email to CentralNic a request for registrar verification in connection with the disputed domain name. On December 21, 2009, CentralNic transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name that differed from the named Respondent and contact information in the Complaint. The Complainant filed an amendment to the Complaint on January 5, 2010, adding the second Respondent. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the CentralNic Dispute Resolution Policy (the “Policy”) and the Rules for CentralNic Dispute Resolution Policy (the “Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondents of the Complaint, and the proceedings commenced on January 7, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was January 27, 2010. The Response was filed with the Center on January 25, 2010.
The Center appointed Andrew Frederick Christie 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.
On January 30, 2010, the first Respondent transmitted by email to the Center two messages, which were subsequently passed on to the Complainant by the Center. On February 2, 2010, the Complainant transmitted by email to the Center a response to the first Respondent's comments of January 30, 2010. On February 3, 2010, the first Respondent transmitted by email to the Center a response to the Complainant's response of February 2, 2010. On February 4, 2010, the first Respondent transmitted by email to the Center some further comments relating to the case. The documents received by the Center from the Complainant and the first Respondent on January 30, February 2, February 3 and February 4, 2010, were all passed on to this Panel by the Center. 4. Factual Background
The Complainant is the famous beverages company, The Coca-Cola Company, and is the owner of extensive reputation and goodwill in the mark COCA-COLA and associated marks for beverages as well as a wide range of goods and services. The Complainant owns many trademark registrations around the world that consist of, or contain, the words COCA-COLA, all of which predate the registration of the disputed domain name.
The second Respondent registered the disputed domain name on August 17, 2009. The registration is of the third-level domain within the second-level domain of the gTLD . The first Respondent is listed as the Client Contact in the WhoIs record for the disputed domain name. On October 12, 2009, the Complainant received a letter from the first Respondent stating: “I own the domain www.. I am writing to you with a view to selling the above Domain. Currently I am forming a ‘New Political Party' here in the UK. I am doing so as many of the Electorate here feel... we need ‘Change'. I understand that if you wish to purchase the Domain this will not be an endorsement of the Party. But any funds received will go in their entirety to ‘Establishing' this New Party. The Domain is currently parked with .”
On October 29, 2009, the Complainant responded by letter, acknowledging receipt of the first Respondent's communication and declining the offer. On November 30, 2009, the Complainant wrote to the first Respondent alleging the domain name was registered in breach of the Policy and requesting it be transferred to the Complainant. At that time the disputed domain name resolved to a website containing the Complainant's COCA-COLA trademark in cursive script.
On November 30, 2009, the Complainant's representative received a telephone call from the first Respondent, during which he commented that he “had no connection to [the Complainant]” and that he wanted to “make money” from the domain name. The first Respondent informed that he would arrange for the Complainant's mark to be removed from the website. However, he commented that the domain name “would not be transferred without a payment” and that the “offer to sell remained open”. Subsequently, the Complainant's trademark was removed from the website. On November 30, 2009, the Complainant received an email from the first Respondent, stating “I have only ever offered this domain directly to [the Complainant]. … I purchased it in good faith and in doing so thought that [the Complainant] would appreciate this action and in turn offer a small fee in return for it.”
A request for mediation was made by the Complainant to CentralNic on December 1, 2009. The Respondent participated in this mediation but it was terminated on December 9, 2009, due to no agreement being reached. 5. Parties' Contentions A. Complainant
The Complainant contends that the disputed domain name is confusingly similar to its COCA-COLA trademark, because it wholly contains the words “coca-cola” without any additional distinguishing feature.
The Complainant contends that the Respondents have no rights or legitimate interests in respect of the disputed domain name, because there is no evidence that the Respondents have: used, or made demonstrable preparations to use, the disputed domain name in connection with a bona fide offering of goods or services; been commonly known by the disputed domain name; or made a legitimate non-commercial or fair use of the disputed domain name without intent for commercial gain to misleadingly divert consumers or to tarnish the Complainant's rights.
The Complainant contends that the disputed domain name was registered and is being used in bad faith. The first Respondent has repeatedly offered to sell the domain name to the Complainant for more than it cost to register it. The only conclusion that can be drawn is that the domain name was registered primarily for the purpose of selling or otherwise transferring it to the Complainant for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name. The website to which the domain name resolves has not been used for a legitimate commercial purpose at any time since the domain name's registration. The only reasonable inference that can be made from the lack of content on the website is that it was set up with the sole intention of diverting attention away from the Complainant, thereby unfairly disrupting the Complainant's legitimate business, and/or with the intention of selling the domain name to the Complainant or a competitor of the Complainant. Given the Complainant's reputation in the COCA-COLA trademark, it is impossible to conceive of any good faith use of the domain name by the Respondents. B. Respondents
The Respondents contend that the disputed domain name was available without restrictions and that it was bought legally and in good faith. The Respondents contend that the Complainant had been asked only to reimburse the cost of the disputed domain name and costs incurred, thereby making a small donation to the first Respondent's new political party in the U.K. 6. Discussion and Findings A. Identical or Confusingly Similar
The disputed domain name consists of the Complainant's trademark COCA-COLA, together with the second-level domain characters “.eu” and the gTLD extension “.com”. Neither the second level nor the gTLD characters provide any distinguishing feature to the domain name – that is, the wholly dominant feature of the domain name is the Complainant's trademark COCA-COLA. This Panel finds that the disputed domain name is confusingly similar to the Complainant's trademark. B. Rights or Legitimate Interests
The fact that there is no requirement for a registrant of a third-level domain name in the domain to establish eligibility to the domain name (or, as the Respondents put it, the fact that there are no “restrictions” on registration) does not mean that the fact of registration alone provides the registrant with a right or legitimate interest in the domain name. The Respondents have not provided any evidence of any fact that would establish they have a right or legitimate interest in the disputed domain name and, given the substantial reputation of the Complainant in the COCA-COLA trademark, it is almost impossible to conceive of any right or legitimate interest that the Respondents could have in the domain name. This Panel finds that the Respondents have no rights or legitimate interests in the disputed domain name. C. Registered or Used in Bad Faith
The evidence demonstrates that the first Respondent offered to sell the disputed domain name to the Complainant in an attempt to raise funds for his new political party, the second Respondent. This evidence is strongly supportive of the contention that the Respondents registered the domain name primarily for the purpose of selling, renting or otherwise transferring it to the Complainant for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name. This Panel finds that, pursuant to the Policy, paragraph 4(b)(i), the disputed 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.
Andrew F. Christie
Sole Panelist
Dated: February 16, 2010
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