WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION The Coca-Cola Company v. Forsyte Corporation Case No. D2010-0564 1. The Parties
The Complainant is The Coca-Cola Company of Atlanta, Georgia, United States of America, represented by Valea AB, Sweden.
The Respondent is Forsyte Corporation of Nassau, the Bahamas. 2. The Domain Name and Registrar
The disputed domain name is registered with D Inc. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 14, 2010. On April 14, 2010, the Center transmitted by email to D Inc. a request for registrar verification in connection with the disputed domain name. On April 14, 2010, D Inc. 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 proceeding commenced on April 15, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was May 5, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on May 6, 2010.
The Center appointed Joseph Dalby as the sole panelist in this matter on May 10, 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 is a corporation organized and existing under the laws of the state of Delaware, United States with a principal place of business in Atlanta GA, United States.
The Complainant owns the COCA-COLA trademark and variations of that mark throughout the world and licenses this trademark to Coca -Cola bottlers throughout the world. It declares a product range of nearly 450 brands in over 200 countries or territories worldwide and a rate exceeding 1.4 billion servings each day.
The COCA-COLA mark and its variations are registered as a trademark and service mark in numerous jurisdictions. In particular and for the purposes of this administrative proceeding, the Complainant relies upon United States Federal Trademark Registration No. 0022406, dated January 31, 1893, European Union Community Trademark Registration No. 2091569, and Bahamian trademark registrations Nos. 857, 858 and 11,858 - the earliest of these being registered in 1933 for the mark COCA-COLA.
Copies of selected trademark certificates as well as a list of trademark registrations worldwide for the trademark COCA-COLA have been produced to the Panel.
The Complainant also declares to be the owner to more than 1,329 domain name registrations throughout the world containing the COCA-COLA mark, including approximately 167 domain names alone for the mark COCA-COLA, distributed among generic Top Level Domains and country Top Level Domains. A list of domain name registrations containing the COCA-COLA mark owned by the Complainant or its subsidiaries as of January 2009 has been produced to the Panel.
The Respondent is purportedly a corporation with an address in Nassau, the Bahamas. Beyond what is initially attributable to the Respondent on the face of screen prints of the web page resolving to the disputed domain name, no further information has been provided to the Panel.
The disputed domain name was first registered in 2005. 5. Parties' Contentions A. Complainant
The Complainant firstly contends that the disputed domain name is identical or confusingly similar to trademarks or service marks in which the Complainant has rights.
In evidence, the Complainant refers to its registered trademarks. Evidence of registration of both domain names and trademarks has been produced by the Complainant.
The Complainant avers that the disputed domain name is confusingly similar to its trademark and its domains names, since the domain name incorporates the Complainant's trademark in its entirety. It adds that even though the disputed domain name also incorporates an additional, geographical term, namely “India”, this cannot distinguish or obviate from the confusing similarity between the two. Finally, the Panel observes that the “.com” suffix should, as decided by other UDRP panels, be ignored, it being a generic or functional component of the domain name. For each of the points, previous UDRP panel decisions are referred to in support.
Secondly, the Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name. It states in evidence that the Complainant has not licensed its trademark to the Respondent, and there is no relationship between the parties which would justify the registration of the disputed domain name by the Respondent. Moreover, nothing in the records, including the WhoIs information, suggests that the Respondent is commonly known by the disputed domain name.
Further the Complainant avers that the disputed domain name does not appear to be used for any bona fide offering of goods or services. It submits that when third party trademarks are registered as domain names and used for pay-per-click landing pages with commercial hypertext links to the trademark owners own goods or services and/or the goods or services of others, such as it suggests is happening in respect of the disputed domain name, the trend in UDRP decisions is to recognize that such practices are not considered a bona fide offering of goods and/or services, cf. PNY Technologies Inc. v. Caribbean Online International Ltd.,WIPO Case No. D2008-0544. Furthermore, it avers such practices can also be evidence of the Respondent's lack of legitimate interest in the domain name, cf. America Online, Inc. v. Tencent Communications Corp., NAF Claim No. 93668. In the Complainant's submission, the Complainant avers that as there is no evidence that the Respondent has ever used or made demonstrable preparations to use the disputed domain name in connection with any bona fide offering of good and services or for any noncommercial purposes, it is recognized as prima facie evidence that the Respondent lacks legitimate interest in the domain name.
Thirdly, and finally, the Complainant contends that the disputed domain name has been registered and is being used in bad faith. It avers that given the very considerable fame of the COCA-COLA mark, it is inconceivable that the Respondent was not aware of Complainant's rights to the COCA-COLA trademark.
In evidence the Complainant has produced copies of printed screenshots that indicate that the disputed domain name has been used to host a website containing hypertext links concerned with goods and services. And it alleges that the Respondent is using the disputed domain name to attract Internet users by taking undue advantage of the likelihood of confusion as to the Complainant's sponsorship and affiliation with the disputed domain name solely for the purpose of commercial gain through the generation of click-through revenue with the links provided to the Complainant's products as well as goods or services of third parties with no connection to the Complainant. Such commercial benefit, it observes, constitutes bad faith registration and use under the Policy, paragraph 4(b)(iv), cf. American University v. Richard Cook, NAF Claim No. 208629.
In addition, the Complainant points out that a search reveals that the Respondent in more than 23 UDRP proceedings has been listed as “respondent” concerning registering and using domain names incorporating third parties' trademarks or variations thereof to redirect Internet users to linking portals for profit. B. Respondent
The Respondent did not reply to the Complainant's contentions. In particular, it has not submitted evidence of any the scenarios in paragraph 4(b) of the Policy. 6. Discussion and Findings
The disputed domain name is governed by the Policy, by virtue of the contract between D Inc and the registrant, i.e., the Respondent.
The Respondent has been given an adequate opportunity to deal with the Complainant's allegations against it, and it is thus noted that the Respondent has not offered any contentions in rebuttal of the claims and contentions made by the Complainant.
The Panel accepts the evidence and agrees with the submissions set out in the Complainant's contentions as satisfactory proof of the facts alleged and the conclusions that may be drawn.
Accordingly, in this matter the Panel finds as follows: A. Identical or Confusingly Similar
The Complainant has proven that it has rights to an established and valid trademark. Other than the addition of a geographical term, the disputed domain name is identical to the trademarks relied upon. The additional term does not materially alter the character and substance of the disputed domain name such as to distinguish it from the trademark or to render it any less identical or confusingly similar. Accordingly, the Panel finds that the disputed domain name is identical or confusingly similar to the Complainant's trademark. B. Rights or Legitimate Interests
Taking the Complaint in its entirety, the Complainant has satisfactorily demonstrated a prima facie case that the Respondent has no rights to or legitimate interests in the disputed domain name. In default of the Respondent adducing any evidence to rebut this contention, the Complainant has adequately proved this element. C. Registered and Used in Bad Faith
It is noted that none of the scenarios in paragraph 4(b) of the Policy are made out or relied upon.
That the Respondent has failed to adduce any evidence of rights or legitimate interests in the disputed domain name, this is suggestive of bad faith. The Panel finds that the trademarks relied upon are sufficiently distinctive and well-known and that the registration of a similar name as a domain name in this case bolsters a finding of bad faith. Even had the Respondent demonstratively prepared to use the domain name in connection with an online offering, it could not but have been aware of the Complainant's established reputation and the notoriety of the trademarks relied upon.
The fact that the disputed domain name was first registered in 2005, and presumably has been renewed periodically until now is, in the current circumstances, of no consequence.
Accordingly, it is reasonable to infer that the Respondent must have been aware of the Complainant's trademark both at the initial point of registering the disputed domain name and subsequently but registered and renewed the registration of the disputed domain name anyway. 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.
Joseph Dalby
Sole Panelist
Dated:May 24, 2010
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