The Complainant is The Coca-Cola Company of Atlanta, Georgia, United States of America, represented by Simmons & Simmons LLP, United Kingdom of Great Britain and Northern Ireland.
The Respondent is Ma Ying Jo of Shanghai, China. 2. The Domain Name and Registrar
The disputed domain name is registered with RegisterM Corp. (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 12, 2012. On September 12 and 19, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 20, 2012, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on September 24, 2012 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amended Complaint on September 28, 2012.
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 October 2, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was October 22, 2012. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 24, 2012.
On November 6, 2012, PrivacyP, the originally listed registrant of the disputed domain name, sent an email communication to the Center stating that “Privacy Protection was just a service enabled on the domain name”.
The Center appointed Andrea Jaeger-Lenz as the sole panelist in this matter on November 5, 2012. 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 the trademarks COCA-COLA and COKE and markets cola beverages around the world under the brands COCA-COLA, COKE, DIET COKE, COKE LIGHT, CHERRY COKE, COKE ZERO, COKE BLAK and VANILLA COKE. The Complainant owns, amongst others, trademark registrations around the world that consist of or contain the word “coke” for a broad range of goods and services including the following trademarks:
(a) United States registration no. 415755 for COKE in Class 32 filed on March 27, 1944;
(b) United States registration no. 1260160 for DIET COKE in Class 32 filed on September 23, 1982;
(c) United States registration no. 1436191 for COKE in Classes 6, 8, 9, 11, 14, 16, 18, 20, 21, 24, 25, 26, 27, 28 and 34 filed on December 16, 1985;
(d) United Kingdom registration no. 620845 for COKE in Class 32 filed on November 4, 1942;
On October 1, 2011, the Complainant launched a promotional campaign called “Share a Coke” in Australia, accessible under the domain name which was redirected to the Complainant’s Australian Facebook page.
The disputed domain name was created on October 5, 2011. The Respondent is using the disputed domain name to direct Internet users to a landing page providing links to other websites mostly on subject matters in the financial services industry but also providing a link named “Coca-Cola”. 5. Parties’ Contentions A. Complainant
The Complainant states that it has registered rights in the mark COKE that predate the creation of the disputed domain name and refers also to its use of the domain name . The Complainant contends that it has gained a global reputation in the COKE mark and refers to a large number of previous WIPO UDRP panel decisions having found that the combination of the word “coke” with a generic term in a domain name results in confusing similarity with the Complainant’s COKE mark. The Complainant submits that the phrase “share a” refers to sharing an item, which it believes not to be particularly distinctive for any goods or services and therefore does nothing to distinguish the disputed domain name from COKE and that therefore the disputed domain name is confusingly similar to its mark COKE.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the disputed domain name. It states that the Respondent has not used or made demonstrable preparations to use the disputed domain name in connection with any bona fide offering of goods or services or any legitimate noncommercial offer purpose, that it has not licensed the Respondent to use the disputed domain name, and that there is nothing to suggest that the Respondent is commonly known by the disputed domain name.
The Complainant further alleges that the disputed domain name has been registered and is being used in bad faith. It notes that the disputed domain name had been registered by the Respondent after the start of the “Share a Coke” campaign in Australia and after the creation of the domain name which indicates that the motive behind the registration was to profit from the promotional campaign of the Complainant. Through the use of the disputed domain name and the domain parking page with links to other websites the Respondent is using the disputed domain name in bad faith with a view to attracting Internet users for commercial gain to the Respondent’s website or other online locations by creating a likelihood of confusion with the Complainant’s COKE mark as to the source, sponsorship, affiliation or endorsement of its website or location.
The Complainant requests a decision that the disputed domain name be transferred to it. B. Respondent
The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings
Pursuant to the Policy, paragraph 4(a), the Complainant must prove each of the following requirements to justify the transfer of the disputed domain name:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and
(ii) that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) that the Respondent has registered and is using the disputed domain name in bad faith.
By the Rules, paragraph 5(b)(i), it is expected of the respondent to “[r]espond specifically to the statements and allegations contained in the Complaint and include any and all basis for the Respondent (domain-name holder) to retain registration and use of the disputed domain name […]”.
In this case, the Center has employed all required reasonable means to achieve actual notice of the Complaint to the Respondent in compliance with the Rules, paragraph 2(a), and the Respondent was given an opportunity to present its case.
In the event of a default, under the Rules, paragraph 14(b) “[…] the panel shall draw such inferences therefrom as it considers appropriate.” As stated by numerous UDRP panels (e.g. Viacom International Inc. v. Ir Suryani,WIPO Case No. D2001-1443), if the Respondent has not submitted any evidence and has not contested the contentions made by the Complainant, the Panel is left to render its decision on the basis of the uncontroverted contentions made and the evidence supplied by the Complainant: “[…] In the absence of any evidence to the contrary submitted by the Respondent, this Panel accepts in large measure (but not wholly) the submitted evidence and the contended for factual and legal conclusions as proven by such evidence.”
In the present administrative proceeding, the Respondent has chosen not to submit a response. Its default leads the Panel to conclude that the Respondent has no arguments or evidence to rebut the contentions of the Complainant. The Panel therefore takes its decision on the basis of the statements and documents before it and in accordance with the Policy, the Rules, and any rules and principles of law it deems applicable. A. Identical or Confusingly Similar
The Panel finds on the evidence that the Complainant has registered rights in the mark COKE. The Panel further finds that, based on the evidence provided on the actual use of the website under its domain name , the Complainant also has unregistered rights in the expression “share a coke” in Australia for the purposes of the UDRP.
The Panel further finds that the disputed domain name, due to the addition of the element “share a”, which is less distinctive than the element “coke”, is confusingly similar to the registered mark COKE. It is well established, that a generic top level domain suffix such as “.com” may be discounted for the purpose of this assessment.
Thus, the first requirement of the UDRP is satisfied. B. Rights or Legitimate Interests
The Complainant has claimed that the Respondent has no rights or legitimate interests in the disputed domain name, and provides a number of arguments to that extent. Thus, the Complainant has established a prima facie case under the Policy, paragraph 4(a)(ii).
It is a well established principle that once a complainant makes a prima facie case that a respondent has no rights or legitimate interests in given domain name, the burden of production shifts on the respondent to rebut this showing by providing evidence to the contrary.
In the present case, the Respondent has chosen not to present any arguments providing for the contrary. In particular, the Respondent has not contended that any of the circumstances described in the Policy paragraph 4(c), or any other circumstances are present in its favor.
Moreover, there are no facts provided or otherwise evident leading to assume that any rights or legitimate interests of the Respondent could be present in this case.
Therefore, and in the lack of any evidence or allegations to the contrary, the Panel finds that the Respondent has no rights or legitimate interests in the disputed domain name within the meaning of the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith
For the purposes of the Policy, paragraph 4(a)(iii), the following circumstances, in particular but without limitation, if found by the panel to be present, shall be evidence of the registration and use of a domain name in bad faith:
(i) Circumstances indicating that the holder has registered or has acquired the domain name primarily for the purposes 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 the Complainant, for valuable consideration in excess of the holder’s documented out-of-pocket costs directly related to the domain name; or
(ii) the holder has 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 holder has engaged in a pattern of such conduct; or
(iii) the holder has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the holder has intentionally attempted to attract, for commercial gain, Internet users to the holder’s website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of his website or location or of a product or service on the holder’s website or location.
In the present case, the disputed domain name is similar to the Complainant’s trademark COKE and identical to the Complainant’s domain name which it had started using for a marketing campaign only a few days before the Respondent registered the disputed domain name. The identity of the second level domain name between the domain name and the disputed domain name, along with a wide spread Internet campaign of the Complainant cannot lead to any other assumption than that the Respondent had noticed the Complainant’s campaign and Australian domain name before registration of the disputed domain name and had registered it in order to profit from the fact, that the Complainant had failed to register the respective second level domain “shareacoke” under the top level domain “.com”. Thus, on the evidence presented, the Panel agrees that the disputed domain name has been registered in bad faith.
On the evidence presented, the Panel is also of the view that the domain name is being used in bad faith. The Respondent uses the website by letting it resolve into a domain parking page with further links to other websites. It is a well-known fact that the owners of such websites generally profit commercially from landing pages such as the one presented here by generating “click through” revenues for traffic channeled to the owners of the linked websites through the links provided on the landing page. Thus, the Respondent is deriving a financial benefit from web traffic diverged through the disputed domain name to link websites on the domain parking page (see Compart AG v. C / Vertical Axis, Inc., WIPO Case No. D2009-0462; V & S Vine&Sprit AB v. Corinne Doucos, WIPO Case No. D2003-0301). In the present case, it is of no issue that the links provided on the landing page are, besides the link labeled “Coca-Cola”, for most part unrelated to the Complainant or its business. What counts is that, due to the well-known character of the COKE mark and the fact, that the Complainant has just launched its domain name for actual use on a website, Internet users who may not recall, under which top level domain precisely to look for the said campaign of the Complainant are easily misdirected to the disputed domain name. Even if such Internet users, when having arrived at the landing page, are not led into believing that the website is connected with the Complainant, it is still likely that they might use any of the links provided on that the landing page which may lead to commercial gain of the Respondent. Thus, by using the disputed domain name in order to resolve into a landing page most likely generating pay-per-click revenues, the Respondent takes unfair advantage of and capitalizes on the Complainant’s COKE brand.
For these reasons, the Panel accepts that the element described above under paragraph 4(b)(iv) of the Policy is present here.
Therefore, and in the lack of any allegation or evidence to the contrary, the Panel finds that the Respondent has registered and is using the disputed domain name in bad faith. 7. Decision
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name be transferred to the Complainant.
Andrea Jaeger-Lenz
Sole Panelist
Date: November 15, 2012
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