Complainant is The Coca-Cola Company of Atlanta, United States of America, represented by King & Spalding, United States of America.
Respondent is Latorcorp Limited of California, United States of America. 2. The Domain Names and Registrar
The disputed domain names , , , , , and (the “Domain Names”) are registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 26, 2013. On July 29, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Names. On July 29, 2013, the Registrar 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” 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 Respondent of the Complaint, and the proceedings commenced on August 5, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was August 25, 2013. Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 28, 2013.
The Center appointed Robert A. Badgley as the sole panelist in this matter on September 17, 2013. 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 produces beverages, including the beverage COCA-COLA which was invented in 1886. Complainant’s family of trademarks include COCA-COLA and COKE, two of the most famous brands in the world. According to Complainant, the brands COCA COLA and COKE have an estimated value in excess of USD 77 billion, and were named the world’s most valuable brand in 2012 by Interbrand. Complainant holds numerous trademark registrations in the United States and across the world, including the United States Patent and Trademark Office (“USPTO”) registration of COCA-COLA in 1928 and the USPTO registration of COKE in 1944.
Respondent registered the Domain Names in March 2013 () and May 2013 (all the others). The Domain Names resolve to largely identical websites that feature the COKE and COCA-COLA marks and purport to confirm that the visitor has won a prize sponsored by Complainant. According to Complainant, Respondent is engaged in a phishing scam whereby Respondent sends SMS messages and emails to Internet users and directs such users to Respondent’s bogus websites with the lure of a prize. Once at the false site, Respondent, pretending to be sponsored by or affiliated with Complainant, asks the visitor for personal information. 5. Parties’ Contentions A. Complainant
Complainant’s salient factual contentions are set forth above or will be taken up below in context in the discussion of the three elements under the Policy. Complainant seeks a transfer of the Domain Name. B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Paragraph 4(a) of the Policy lists the three elements which Complainant must satisfy with respect to each of the Domain Names:
(i) the Domain Names are identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests in respect of the Domain Names; and
(iii) the Domain Names have been registered and are being used in bad faith. A. Identical or Confusingly Similar
Complainant holds rights in the famous trademarks COCA-COLA and COKE. Six of the Domain Names contain the dominant word COKE as well as other words (“promo,” “cola”, “mobile”), abbreviations (“sa”, “mtn”), or letters “c”, “p”). The words “promo” ,“cola,” and “mobile” do little or nothing to reduce the likelihood of confusion between the Domain Names and the world famous mark COKE. Likewise, the abbreviations “sa” and “mtn” do not diminish the confusing similarity between the Domain Names and the COKE mark. Nor do the stray letters “c” or “p” – whether situated before or after the word COKE – diminish to any meaningful extent the confusing similarity between the mark and the Domain Names.
Likewise, the seventh Domain Name contains the famous mark COCA COLA (without the hyphen) and the letter “p.” This Domain Name is also confusingly similar to Complainant’s world famous COCA-COLA mark. Numerous prior decisions under the Policy have held that the addition of a generic word to the famous COKE or COCA-COLA marks does not eliminate the confusing similarity between the mark and the domain name in question. For example, see The Coca-Cola Company v. Whois Privacy Service,WIPO Case No. D2010-0088 (involving ); The Coca-Cola Company v. Masud Osman,WIPO Case No. D2001-0618 (, ); The Coca-Cola Company v. Eugene McGlynn,WIPO Case No. D2000-1677 ().
Accordingly, the Panel finds that Policy paragraph 4(a)(i) is satisfied with respect to each of the Domain Names. B. Rights or Legitimate Interests
Pursuant to paragraph 4(c) of the Policy, with respect to each of the Domain Names, Respondent may establish its rights or legitimate interests in a Domain Name, among other circumstances, by showing any of the following elements:
(i) before any notice to you [Respondent] of the dispute, your use of, or demonstrable preparations to use, the Domain Name or a name corresponding to the Domain Name in connection with a bona fide offering of goods or services; or
(ii) you [Respondent] (as an individual, business, or other organization) have been commonly known by the Domain Name, even if you have acquired no trademark or service mark rights; or
(iii) you [Respondent] are 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 or service mark at issue.
Complainant bears the burden of proof on the “rights or legitimate interests” issue (as it does for all three elements of the Policy). Louis de Bernieres v. Old Barn Studios Limited,WIPO Case No. D2001-0122. Nevertheless, the panel in PepsiCo, Inc. v. Amilcar Perez Lista d/b/a Cybersor,WIPO Case No. D2003-0174, correctly observed: “A respondent is not obliged to participate in a domain name dispute proceeding, but its failure to do so can lead to an administrative panel accepting as true the assertions of a complainant which are not unreasonable and leaves the respondent open to the legitimate inferences which flow from the information provided by a complainant.” As noted above, Respondent did not file a Response and hence did not effectively rebut any of Complainant’s assertions.
There is no evidence that Respondent has ever been authorized to use Complainant’s mark in a domain name or otherwise. Likewise, there is no evidence that Respondent is commonly known by the Domain Names, or has made substantial preparations to use the Domain Names in connection with a bona fide offering of goods or services. Rather, the undisputed and plausible record evidence here establishes that Respondent is engaged in a phishing scam and is using the Domain Names for that decidedly illegitimate purpose.
Accordingly, the Panel finds that Policy paragraph 4(a)(ii) is satisfied with respect to each of the Domain Names. C. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy provides that the following circumstances, “in particular but without limitation,” are evidence of the registration and use of a Domain Name in “bad faith” :
(i) circumstances indicating that Respondent has registered or has acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant who is the owner of the trademark or service mark or to a competitor of that Complainant, for valuable consideration in excess of its documented out of pocket costs directly related to the Domain Name; or
(ii) that Respondent 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 Respondent has engaged in a pattern of such conduct; or
(iii) that Respondent has registered the Domain Name primarily for the purpose of disrupting the business of a competitor; or
(iv) that by using the Domain Name, Respondent has intentionally attempted to attract, for commercial gain, Internet users to Respondent’s website or other on line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of Respondent’s website or location or of a product or service on Respondent’s website or location.
The undisputed evidence in the record indicates that Respondent is using the Domain Names to mislead and divert Internet users by luring them to a website apparently sponsored by or affiliated with Complainant, and then soliciting the users to provide personal information in order to win an illusory prize. This is a clear case of bad faith registration and use.
Accordingly, the Panel finds that Policy paragraph 4(a)(iii) is satisfied with respect to each of the Domain Names. 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 Domain Names, , , , , , , and be transferred to Complainant.
Robert A. Badgley
Sole Panelist
Date: September 25, 2013
Full & Egal Universal Law Academy