WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION Bulmers Limited and Wm. Magner Limited v. Ho Nim Case No. D2010-0330 1. The Parties
The Complainants are Bulmers Limited and Wm. Magner Limited, both of Dublin, Ireland, represented by FRKelly, Ireland.
The Respondent is Ho Nim, Shanghai, the Peoples Republic of China. 2. The Domain Name and Registrar
The disputed domain name is registered with A, Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on March 3, 2010. On March 4, 2010, the Center transmitted by email a request for registrar verification in connection with the disputed domain name. On March 5, 2010, A, Inc. transmitted by email to the Center its verification response confirming that 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”), 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 Respondent of the Complaint, and the proceedings commenced on March 8, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was March 28, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on April 9, 2010.
The Center appointed Jeffrey M. Samuels as the sole panelist in this matter on April 20, 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
Complainant Bulmers Limited is the registered proprietor of marks consisting of or comprising the term MAGNERS, as used since at least 1999 on cider in the United Kingdom of Great Britain and Northern Island. See Complaint, Annex 2. Bulmers Limited has also registered numerous domain names consisting of or containing the mark MAGNERS. See Complaint, Annex 3. Complainant Wm. Magner Limited is a trading company that uses the above-referenced marks with the consent of Bulmers Limited. Complainants are related companies, being part of a group of companies headed by C&C Group plc, an Irish-based company and one of the largest makers and sellers of branded beverages and savory snacks in Ireland.
Since its launch in the United Kingdom in 1999, MAGNERS cider established a 6% market share of the long alcohol drink market and has been sold elsewhere in Europe, as well as in the United States of America. Complainants sponsor a number of sporting events under the MAGNERS mark, including the MAGNERS LEAGUE, a rugby championship featuring teams from Ireland, Scotland, Wales, and the United Kingdom.
The disputed domain name, , was registered on November 5, 2009. According to Complainants, there is no site corresponding to the domain name.1 In a letter dated December 16, 2009, Complainants' counsel wrote to Respondent requesting a transfer of the domain name. See Complaint, Annex 9. 5. Parties' Contentions A. Complainant
Complainants allege that the disputed domain name is identical to the MAGNERS mark and confusingly similar to the term MAGNERS LEAGUE. According to Complainants, if the top-level domain is ignored, the disputed domain name is nearly identical to the MAGNERS mark and if the top-level is not ignored, it is confusingly similar.
Complainants further assert that there has been no evidence prior to notice of this dispute of any use or demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services. They also contend that Respondent, Ho Nim, is not linked in any way to the MAGNERS mark or to the surname “Magner,” or in any way connected or affiliated with Complainants or authorized to carry out activities on behalf of Complainants.
With respect to the issue of “bad faith” registration and use, Complainants submit that the disputed domain name was registered primarily for the purpose of selling the domain name registration to Complainants for valuable consideration in excess of Respondent's out-of-pocket costs. Complainants note that, according to , Respondent owns about 119,485 domain names. See Complaint, Annex 10.
Complainants contend that there is no conceivable non-infringing use to which Respondent could put the domain name and point out that the domain name is a mere misspelling of Complainants' sponsorship title “Magners League.” It is clear, Complainants asserts, that, by registering the disputed domain name, Respondent is preventing Complainants from reflecting the MAGNERS mark in a corresponding domain name and is seeking to disrupt the business of Complainants, in attracting visitors looking for information on Complainants' mark and creating difficulties for customers of Complainants who may stumble upon Respondent's web site when trying to find Complainants' web site. Complainants also claim that Respondent may be seeking to benefit from click fees when his site is mistakenly opened by a person looking for Complainants' web site. B. Respondent
The Respondent did not reply to the Complainants' contentions. 6. Discussion and Findings A. Identical or Confusingly Similar
The Panel finds that the disputed domain name, , is confusingly similar to the MAGNERS mark. The domain name incorporates the MAGNERS mark in its entirety. The term “leauge” is a slight misspelling of the descriptive term “league” and the inclusion of such term in the disputed domain name does not avoid a determination of confusing similarity.
The Panel further holds that Complainant Bulmers Limited, through its ownership and use of the MAGNERS mark, and Complainant Wm. Magner Limited, through its authorized use of such mark, have rights in the mark. B. Rights or Legitimate Interests
The Panel concludes that Complainants have sustained their burden of proving that Respondent has no rights or legitimate interests in the subject domain name. There is no evidence that Respondent is making a bona fide use of the domain name, that he is commonly known by the domain name, or that he is making a legitimate noncommercial or fair use of the domain name.
The Panel finds, also in view of the Panel's findings below, that the second element of the Policy has been met. C. Registered and Used in Bad Faith
The Panel concludes that the domain name was registered and is being used in bad faith. The evidence indicates that Respondent has registered almost 120,000 domain names. In view thereof, the Panel finds it likely that Respondent registered the domain name in order to prevent Complainants from reflecting the mark in a corresponding domain name, within the meaning of paragraph 4(b)(ii) of the Policy.
Moreover, as noted above, the Panel's review of the disputed site indicates that it is currently being used to provide links to rugby games and equipment. Further, as also noted above, the disputed domain name incorporates the MAGNERS mark in full, adding only a slight misspelling of the descriptive term “league.” The evidence also indicates that Complainants have used the term “Magners League” in connection with their sponsorship of a rugby tournament. Thus, and given the likelihood, as alleged by Complainants, that Respondent is collecting click-through fees, the Panel also holds that Respondent is intentionally attempting to attract, for commercial gain, Internet users to its site by creating a likelihood of confusion as to the source of the disputed site and/or of the goods and services found or offered at such site, within the meaning of paragraph 4(b)(iv) of the Policy. 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.
Jeffrey M. Samuels
Sole Panelist
Dated: May 4, 2010
1 A review of the current site indicates that is contains links to rugby games, equipment, and jobs.
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