Complainant is Green Mountain Coffee Roasters, Inc., of Waterbury, Vermont, United States of America (“USA”), represented by Fredrikson & Byron, P.A., USA.
Respondent is Demetre Ellison of Stone Mountain, Georgia, USA. 2. The Domain Name and Registrar
The disputed domain name is registered with eNom (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 27, 2013. On September 27, 2013, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 28, 2013, the Registrar 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 Center sent an email communication to Complainant on October 4, 2013 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amendment to the Complaint on October 10, 2013.
The Center verified that the Complaint together with the amendment to 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 October 11, 2013. In accordance with the Rules, paragraph 5(a), the due date for Response was October 31, 2013.
The Center received email communications from Respondent on October 17 and 19, 2013, described below. The Center acknowledged receipt of these communications and informed Respondent of the due date for Response. Respondent submitted no further communications or Response to the Complaint. Accordingly, the Center notified the Parties of the commencement of the Panel appointment process on November 1, 2013.
The Center appointed Jeffrey D. Steinhardt as sole panelist in this matter on November 11, 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 is owner of Keurig, Inc., a company which specializes in coffee brewing machines and coffee supplies. Keurig, Inc. in turn owns various trademarks in the USA and elsewhere that include the term “Keurig.” See, e.g., U.S. Trademark Registration No. 2,057,361 dated April 29, 1997 in International Class 11 for the mark KEURIG, with a first use in commerce date of December 8, 1994.
The disputed domain name was registered on July 5, 2013. It routes to a website that displays links both related to, and unrelated to, coffee brewing and coffee supplies. The website also displays links to Complainant’s website. Respondent’s website also extensively discusses Keurig products and displays links offering discount coupons and coupon codes for use in purchasing Complainant’s products.1 5. Parties’ Contentions A. Complainant
Under the Policy, Complainant alleges that (1) the disputed domain name is confusingly similar to Complainant’s KEURIG family of trademarks; (2) Respondent has no rights or legitimate interests in the disputed domain name; and (3) the disputed domain name was registered and is being used in bad faith.
On this basis, Complainant seeks transfer. B. Respondent
As noted above, Respondent did not formally reply to Complainant’s contentions. On October 17, 2013, however, Respondent addressed the following email to the Center:
“Hello. My name is Demetre Ellison and I am replying to you guys in regards to a complaint letter that I received the other day. It says that I have until October 30th to respond. Honestly, I have no clue what the complaint letter is implying. Apparently, it has something to do with my website .
If you would please respond to this email so we can resolve this issue, it would be very much appreciated.”
On October 19, 2013 Respondent wrote a second email to the Center along the same lines. 6. Discussion and Findings
The Panel must render its Decision on the basis of the statements and documents submitted and in accordance with the Policy, the Rules and any rules and principles of law that it deems applicable. Rules, paragraph 15(a). Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights;
(ii) Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Complainant must establish these elements even if Respondent does not submit a formal Response. See, e.g., The Vanguard Group, Inc. v. Lorna Kang,WIPO Case No. D2002-1064. In the absence of a response, the Panel may also accept as true the reasonable factual allegations in the Complaint. E.g., ThyssenKrupp USA, Inc. v. Richard Giardini,WIPO Case No. D2001-1425 (citing Talk City, Inc. v. Michael Robertson,WIPO Case No. D2000-0009). A. Identical or Confusingly Similar
The Panel agrees with Complainant that the disputed domain name is confusingly similar to a trademark in which Complainant has rights.
UDRP panels generally disregard the generic Top-Level Domain (gTLD) suffix in determining whether a disputed domain name is identical or similar to a complainant’s marks. See e.g., HUK-COBURG haftpflicht-Unterstützungs-Kasse kraftfahrender Beamter Deutschlands A.G. v. DOMIBOT (HUK-COBURG-COM-DOM), WIPO Case No. D2006-0439; VAT Holding AG v. V,WIPO Case No. D2000-0607; Shangri-La International Hotel Management Limited v. NetIncome Ventures Inc.,WIPO Case No. D2006-1315.
Without the gTLD suffix “.net”, the disputed domain name consists of the combination of Complainant’s KEURIG trademark with the added words “couponcodes.” The Panel concludes that the addition of these descriptive terms does not negate the confusing similarity created by Respondent’s complete inclusion of the KEURIG trademark in the disputed domain name. E.g., Sanofi-aventis, Sanofi-Aventis Deutschland GmbH v. Andrey Mitrofanov,WIPO Case No. D2007-1772; Giata Gesellschaft für die Entwicklung und Vermarktung interaktiver Tourismusanwendungen mbH v. Keyword Marketing, Inc.,WIPO Case No. D2006-1137; Hoffmann-La Roche Inc. v. Aneko Bohner,WIPO Case No. D2006-0629.
The Panel therefore determines that the first element of Policy, paragraph 4(a) is fulfilled. B. Rights or Legitimate Interests
Paragraph 4(c) of the Policy contains a non-exhaustive list of circumstances that may demonstrate when a respondent has rights or legitimate interests in the use of a domain name. The list includes:
(1) the use of the domain name in connection with a bona fide offering of goods and services;
(2) being commonly known by the domain name; or
(3) the making of a legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers.
Complainant must show a prima facie case that Respondent lacks rights or legitimate interests. See, e.g., Croatia Airlines d.d. v. Modern Empire Internet Ltd., WIPO Case No. D2003-0455. Once a complainant has made a prima facie showing, the burden to come forward with evidence establishing rights or legitimate interests shifts to the respondent. See, e.g., Document Technologies, Inc. v. International Electronic Communications Inc.,WIPO Case No. D2000-0270.
Complainant alleges that Respondent is taking advantage of consumer confusion by using Complainant’s trademark to attract Internet users to visit Respondent’s website. It is alleged that Respondent does not have rights or legitimate interests because Complainant has not authorized Respondent to use Complainant’s trademarks, that Respondent is not commonly known by the disputed domain name, and that Respondent uses the disputed domain name to display links unrelated to Complainant’s products and also to competitors of Complainant. In the absence of any contrary allegations by Respondent, the Panel accepts as true these undisputed factual averments.2
Similarly, the Panel accepts as true Complainant’s averment that Respondent has not registered trademark rights that include the “Keurig” term.
As noted previously, the record shows that the website to which the disputed domain name routes displays commercial links to third parties offering goods that compete directly with those offered by Complainant under the KEURIG marks. The Panel agrees with Complainant that it is fair to infer that Respondent receives revenue when users click through the links displayed on the page to which the disputed domain name routes. E.g., The Bear Stearns Companies Inc. v. Darryl Pope, WIPO Case No. D2007-0593 (“the Panel is free to infer that Respondent is likely receiving some pecuniary benefit […] in consideration of directing traffic to that site” (citing COMSAT Corporation v. Ronald Isaacs, WIPO Case No. D2004-1082)). See Fat Face Holdings Ltd v. Belize Domain WHOIS Service Lt, WIPO Case No. D2007-0626; Sanofi-aventis v. Montanya Ltd, WIPO Case No. D2006-1079. Therefore the Panel rules that Respondent is not making a legitimate noncommercial or fair use of the disputed domain name.
The Panel also agrees that Respondent is not making a bona fide use of the disputed domain name. E.g., Vanguard Trademark Holdings USA LLC v. Jared Burnup, NAF Claim No. FA1514281 (respondent’s use of the ALAMO trademark, in conjunction with the word “coupon” in the domain name to route to a website with links to the complainant, unrelated third parties, and competitors did not qualify as bona fide under Policy, paragraph 4(c)(i), citing Skyhawke Technologies, LLC v. The Tidewinds Group, Inc. a/k/a DNS Admin, NAF Claim No. FA0949608).
Complainant has established a prima facie case. Refraining from submitting a Response, Respondent has brought to the Panel’s attention no circumstances from which the Panel could infer that Respondent has rights or legitimate interests in use of the disputed domain name.
Therefore, the Panel concludes that the second element of paragraph 4(a) of the Policy is established. C. Registered and Used in Bad Faith
The Panel also concludes that the Complaint fulfills the third element of paragraph 4(a) of the Policy.
Using a domain name to intentionally attract Internet users, for commercial gain, by creating a likelihood of confusion, may be evidence of bad faith registration and use. Policy, paragraph 4(b)(iv). See, e.g., L’Oréal, Biotherm, Lancôme Parfums et Beauté & Cie v. Unasi, Inc,WIPO Case No. D2005-0623. Panels may draw inferences about bad faith registration or use in light of the circumstances, such as whether there is no response to the complaint, concealment of identity, and other circumstances. See e.g., Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003.
Having fully included the KEURIG mark in the disputed domain name, it is clear to the Panel that Respondent knew of Complainant’s marks and registered the disputed domain name intending to draw traffic on the basis of the KEURIG marks. The Panel infers that Respondent deliberately mimicked the mark in the disputed domain name to create confusion and attract Internet users to his website under the disputed domain name for commercial gain. Therefore, the Panel concludes that Respondent registered the disputed domain name in bad faith. Société Nationale des Chemins de fer Français - SNCF v. Damian Miller / Miller Inc., WIPO Case No. D2009-0891.
The website to which Internet users are routed shows that the disputed domain name is used, among other things, to promote offerings of Complainant’s competitors in the field of coffee brewing equipment and supplies. The Panel concludes that this activity evidences bad faith use. mVisible Technologies, Inc. v. Navigation Catalyst Systems, Inc., WIPO Case No. D2007-1141; Pfizer Inc. v. jg a/k/a Josh Green,WIPO Case No. D2004-0784 (citing Google, Inc. v. and Jimmy Siavesh Behain,WIPO Case No. D2000-1240; Casio Keisanki Kabushiki Kaisha (Casio Computer Co., Ltd.) v. Jongchan Kim,WIPO Case No. D2003-0400; Downstream Technologies, LLC v. Bartels System GmbH,WIPO Case No. D2003-0088); DaimlerChrysler Corporation and DaimlerChrysler Service North America LLC v. LaPorte Holdings, Inc.,WIPO Case No. D2005-0070 (citing Royal Bank of Canada v. Henry Chan,WIPO Case No. D2003-0031).
The Panel further finds under the circumstances that Respondent’s decision to refrain from submitting any substantive response to the Complaint following the contacts made with the Center described above (or indeed, any further communications), is cumulative evidence of bad faith.
The Panel concludes therefore that, in addition to having registered the disputed domain name in bad faith, Respondent is also using the disputed domain name in bad faith.3 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 Complainant.
Jeffrey D. Steinhardt
Sole Panelist
Date: November 21, 2013
1 The Panel has undertaken limited research by visiting the website to which the disputed domain name routes, see WIPO Overview of WIPO Panel Views on Selected UDRP Questions (“WIPO Overview 2.0”), paragraph 4.5. The appearance of the website online is consistent with its appearance and content in the screen captures annexed to the Complaint.
2 Annexes submitted with the Complaint also support the allegation that the disputed domain name routes to pages with links routing to competitors of Complainant and to products unrelated to Complainant’s marks.
3 Complainant also contends that bad faith is established under paragraph 4(b)(iii) of the Policy: “Respondent’s activities are also prima facie evidence of conduct falling squarely within paragraph 4(b)(iii) of the Policy (i.e., disrupting the business of the Complainant), whether one uses the narrow or the broad interpretation of ‘disrupting the business of a competitor’ that has developed under existing UDRP panel decisions.”
In light of the Panel’s finding that bad faith is established under paragraph 4(b)(iv), the Panel refrains from also making a finding of bad faith on the basis of Policy, paragraph 4(b)(iii). The plain language of the Policy suggests that a bad faith ruling under paragraph 4(b)(iii) should be grounded on a finding that the respondent registered the disputed domain name “primarily” for purposes of disrupting the business of a competitor; however, the Complaint does not address whether disruption was Respondent’s primary motive.
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