The Complainant is Britvic Soft Drinks Limited of Herfordshire, United Kingdom of Great Britain and Northern Ireland (“UK”), represented by SafeNames Ltd., UK.
The Respondent is Chris Holland of Woodland Hills, California, United States of America (“US”). 2. The Domain Name and Registrar
The disputed domain name is registered with OnlineNic, Inc. d/b/a China-C (the “Registrar”). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 11, 2014. On February 12, 2014, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 13, 2014, the Registrar 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 proceedings commenced on February 20, 2014. In accordance with the Rules, paragraph 5(a), the due date for Response was March 12, 2014. The Center received an informal email communication from the Respondent on March 13, 2014. Accordingly, the Center notified the parties about the commencement of panel appointment process on March 13, 2014. The Responded filed its Response, together with an “Application to have Late Response” Included on March 18, 2014. The Center acknowledged its receipt on March 19, 2014.
The Center appointed Christopher J. Pibus as the sole panelist in this matter on March 19, 2014. 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 carries on business as a distributor of soft drinks and beverages in Great Britain. The Complainant has a portfolio of beverage brands, and has entered into exclusive agreements with other companies, such as PepsiCo to distribute beverages throughout the United Kingdom. The Complainant has expanded its export, licensing and franchise business into other territories, namely Australia and the United States. When the Complainant acquired Orchid Drinks Limited in July, 2000, it extended its brand portfolio to include AMÉ, AQUA LIBRA and PURDEY’S. Upon the acquisition of the PURDEY’S brand, the Complainant undertook an extensive marketing campaign and spent GBP 4 million on advertising expenses.
The Complainant owns trademark registrations for the mark PURDEY’S under United Kingdom Trademark Registration No. UK00001476165 (filed on September 6, 1991 and date of entry in register January 13, 1995) and European Community Trademark Registration No. EU009000068 (filed on April 1, 2010 and registered on August 18, 2010).
The disputed domain name was registered on March 8, 2009. The disputed domain name reverted to a click through website which provided links to third party websites (Annex 5 to the Complaint). 5. Parties’ Contentions A. Complainant Identical or Confusingly Similar
The Complainant relies on its trademark registrations for the mark PURDEY’S under UK Trademark Registration No. UK00001476165 and European Community Trademark Registration No. EU009000068.
The Complainant contends that the disputed domain name is confusingly similar to the Complainant’s registered trademark PURDEY’S. The Complainant submits that the deletion of the apostrophe does not distinguish the disputed domain name from the Complainant’s registered trademark. Rights and Legitimate interests
The Complainant contends that the Respondent has never been and is not currently commonly known by the disputed domain name. The Respondent has never acquired trademark rights in the disputed domain name. The Respondent was not authorized or licensed to use the Complainant’s registered trademark. The Respondent must have been aware of the Complainant’s trademark rights upon registration of the disputed domain name in March, 2009. The Complainant further submits that the Respondent is not using the disputed domain name in a bona fide offering of goods and/or services. The disputed domain name is being used predominantly for the purpose of generating advertising revenues as a result of confusion between the Respondent’s website and the Complainant’s registered trademark. Registered and Used in Bad Faith
The Complainant submits that the Respondent made contact in 2009, offering to sell the domain name . The Complainant put forward an offer to purchase in 2009, to which the Respondent never replied. On January 5, 2014, the Respondent sent an email to the Complainant offering to sell the domain name for GBP 995. The Complainant submits that a further email exchange occurred between January 5, 2014 and January 17, 2014, at which time the Respondent advised various managers at the Complainant that there were 3 other interested buyers. The Complainant contends that the Respondent targeted the Complainant, because it was the registered owner of the trademark PURDEY’S and that this conduct is bad faith under the Policy.
The Complainant also alleges that the Respondent has engaged in a pattern of registering various domain names containing the well-known trademarks of trademark owners. The Complainant contends that the Respondent is well-known cybersquatter and has been involved in several domain name disputes before WIPO and other UDRP Providers.
The Complainant submits that the cumulative evidence filed in this proceeding leads to the conclusion that the Respondent registered and is using a domain name that contains a confusingly similar trademark owned by the Complainant for purposes of misleading Internet users for purposes of monetary gain.
In view of all these reasons, the Complainant contends that the Respondent has registered and is using the disputed domain name in bad faith. B. Respondent
The Respondent is in the business of domain name acquisition and recovery on behalf of third parties.
The Respondent submits that in January 2014, he was actually solicited by Ms. L. Cooksley (an employee of the Complainant), to obtain the disputed domain name on behalf of the Complainant. The Respondent agreed to source the disputed domain name , then contacted the third party owner of the domain name and acquired it for USD 3,000. The Respondent submits that he then offered both the and domain names to the Complainant for GBP 2,995, believing that this was exactly what the Complainant wanted him to do.
The Respondent submits that he had never owned the disputed domain name until he purchased it in January, 2014, on instructions from the Complainant. 6. Discussion and Findings
The Panel is prepared to accept the late filing of the Response. The Respondent submits that due to a clerical error, he mistakeningly thought the due date for filing the Response was March 14, 2014, instead of March 12, 2014. He dispatched an email to the Center on March 13, 2014, requesting information, and then filed the Response on March 18, 2014, together with a request for approval of the late filing. The Panel notes that the extension of time is brief in duration, and that the proceedings were not delayed in any material manner. The Panel also notes that the Complainant is not prejudiced in any material manner by the granting of the late filing of the Response. Therefore, the Panel believes that it would be in the best interest of justice to permit the Respondent to file the Response in these circumstances.
According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:
(i) The disputed domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights;
(ii) The 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. A. Identical or Confusingly Similar
The Panel finds that the Complainant owns registered trademark rights in the trademark PURDEY’S by virtue of European Community Trademark Registration No. EU009000068 and United Kingdom Trademark Registration No. UK00001476165.
The Panel further finds that the disputed domain name is confusingly similar with the Complainants’ registered trademark PURDEY’S. The disputed domain name contains all the elements the Complainants’ trademark, differing only by the deletion of the apostrophe between the letters “y” and “s”. This deletion does not serve to distinguish the disputed domain name from the trademark in question.
Accordingly, the Panel finds that the Complainant has satisfied the requirement under paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
In view of the finding under bad faith, the Panel will not make a finding with respect to rights or legitimate interests. C. Registered and Used in Bad Faith
As a general comment, the Panel notes that the evidence in this proceeding, from both parties, does not provide a full record on which a complete analysis of the facts can be confidently founded. The positions advanced on both sides would require, at a minimum, full cross-examination so that a more complete and accurate version of the key events could be developed. The Policy is not designed for and does not permit this sort of exhaustive testing of credibility and probative value. Accordingly, this decision is based on a summary evaluation of the limited written record as filed, and ought not to be regarded as presenting definitive findings for purposes of any other context.
The Panel has reviewed the email exchange between the Respondent and the Complainant during the period of time between January 5, 2014 and January 14, 2014, as this correspondence provides the context for the crucial facts in this proceeding. In particular, the Panel has considered the email from Ms. L. Cooksley, (the Complainant’s representative) to the Respondent dated January 14, 2014 at 1:42 pm, where Ms. Cooksley wrote:
“We would be interested to purchase & am also interested in if you could supply this also?
What would be the process to get hold of these?”
The Respondent apparently understood this email to mean that the Complainant was asking the Respondent to acquire the disputed domain name for the purpose of transferring it to the Complainant as part of a planned transaction. According to the Respondent, he then acted on this request by arranging to purchase the disputed domain name from a third party.
The Respondent also submitted in his Response copies of email exchanges between himself and domains@ between January 14, 2014 and January 21, 2014, which provide tangible evidence that he actually purchased the disputed domain name for USD 3,000 after and pursuant to the request from the Complainant’s representative. In these circumstances, the offer made by the Respondent to the Complainant on January 17, 2014 to sell both the recently acquired domain name and the domain name for GBP 2,995 is not behaviour which can be viewed as abusive. The documents in evidence suggest that the Respondent was doing exactly what he believed the Complainant asked him to do.
Therefore, the Panel finds that the Respondent was not acting in bad faith when it acquired the disputed domain name in January 2014 or when he subsequently offered to sell it for the amount described above.
Accordingly, the Panel finds that the Complainant has not satisfied the requirement under paragraph 4(a)(iii) of the Policy. 7. Decision
For the foregoing reasons, the Complaint is denied.
Christopher J. Pibus
Sole Panelist
Date: March 27, 2014
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