Complainant is CBC Restaurant Corp. of Dallas, Texas, United States of America ("United States" or "U.S."), represented by Hitchcock Evert LLP, United States.
Respondent is Lorenzo Brescia of Portage, Michigan, United States. 2. The Domain Name and Registrar
The disputed domain name (the "Domain Name") is registered with GoD, LLC (the "Registrar"). 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on February 8, 2016. On February 9, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On the same date, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the Respondent's 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on February 29, 2016. In accordance with the Rules, paragraph 5, the due date for Response was March 20, 2016. Respondent did not submit any response. Accordingly, the Center notified Respondent's default on March 21, 2016.
The Center appointed Harrie R. Samaras as the sole panelist in this matter on March 29, 2016. 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 and its predecessors have operated Corner Bakery Cafe restaurants since 1999, with more than 150 locations currently in business. Complainant owns thirteen (13) trademark registrations around the world that contain the CORNER BAKERY Mark or CORNER BAKERY CAFE Mark.
For example, Complainant owns U.S. Trademark Registration No. 2,565,101 for the word mark CORNER BAKERY (registered on April 30, 2002) for use in connection with "bottled mountain spring water." It also owns U.S. Trademark Registration No. 2,597,050 for the word mark CORNER BAKERY CAFE (registered on July 23, 2002) for use in connection with "Restaurant, catering, and bakery services."
The Domain Name was registered on December 10, 2015. 5. Parties' Contentions A. Complainant
The Domain Name is identical to Complainant's registered CORNER BAKERY Mark and its registered CORNER BAKERY CAFE Mark (collectively, "the Marks").
Respondent registered the Domain Name for a commercial purpose, either to redirect traffic from Complainant's website or to solicit offers to purchase the Domain Name. As of February 5, 2016, Internet users navigating to encounter a parked webpage inviting the user to inquire about purchasing the Domain Name. Respondent has no trademark or intellectual property rights or any other legitimate interest in the Domain Name. Respondent does not use the Domain Name in connection with a bona fide offering of goods or services, but rather to divert traffic from Complainant's website and, potentially, to profit from the purchase of the Domain Name. Respondent is not commonly known by the name "corner bakery" or "corner bakery cafe", and has not acquired trademark or service mark rights in CORNER BAKERY or CORNER BAKERY CAFE.
Respondent has registered and used the Domain Name in bad faith. Respondent's decision was part of a scheme to attract, for commercial gain (namely, to divert traffic from Complainant's website and/or to solicit offers to purchase the domain name for profit), Internet users to Respondent's website by creating a likelihood of confusion with Complainant. The Domain Name is identical to Complainant's longstanding, registered trademarks. B. Respondent
Respondent did not reply to Complainant's contentions. 6. Discussion and Findings
Where a party fails to present evidence in its control, the Panel may draw such inferences as it considers appropriate. Mary-Lynn Mondich and American Vintage Wine Biscuits, Inc. v. Shane Brown, doing business as Big Daddy's Antiques.,WIPO Case No. D2000-0004. Insofar as Respondent has defaulted, it is therefore appropriate to accept the reasonable facts asserted by Complainant and to draw adverse inferences of fact against Respondent. Nonetheless, paragraph 4(a) of the Policy requires that a complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(i) the domain name registered by the respondent is identical or confusingly similar to a trademark or service mark in which the complainant has rights;
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith. A. Identical or Confusingly Similar
Complainant holds rights in the CORNER BAKERY Mark and CORNER BAKERY CAFE Mark. (See U.S. Registration Nos. 2,565,101 and No. 2,597,050, respectively). The Panel further finds that the Domain Name is identical to the CORNER BAKERY Mark insofar as it incorporates the Mark in its entirety. Furthermore, the Domain Name with the generic Top-Level Domain ".cafe" is identical to the CORNER BAKERY CAFE Mark.
The Panel therefore holds that Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests
Complainant contends that Respondent has no rights or legitimate interests in the Domain Name because Respondent: (1) registered the Domain Name for a commercial purpose — either to redirect traffic from Complainant's website or to solicit offers to purchase the Domain Name. That is, Internet users navigating to encounter a parked webpage inviting the user to inquire about purchasing the Domain Name; (2) does not use the Domain Name in connection with a bona fide offering of goods or services; and (3) is not commonly known by CORNER BAKERY or CORNER BAKERY CAFE, and has not acquired trademark or service mark rights in the Marks.
Complainant has raised a prima facie presumption of Respondent's lack of rights or legitimate interests, and Respondent has failed to rebut that presumption. The Panel is therefore satisfied that Complainant has carried its burden of proving that Respondent has no rights or legitimate interests in the Domain Name.
The Panel therefore holds that Complainant has satisfied paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith
The Panel concludes, on the evidence submitted by Complainant, that Respondent has registered and used the Domain Name in bad faith. Complainant's rights in the CORNER BAKERY Mark and the CORNER BAKERY CAFE Mark are uncontroverted, as is the fact that Respondent registered the Domain Name long after Complainant established his rights in the Marks.
Respondent registered the Domain Name that is identical to Complainant's well-known, CORNER BAKERY and CORNER BAKERY CAFE Marks without any rights or legitimate interests in the Domain Name. The evidence of record shows that Internet users navigating to encounter a parked webpage inviting the user to inquire about purchasing the Domain Name. These undisputed facts lead to the conclusion that Respondent knew of Complainant's rights in the CORNER BAKERY and CORNER BAKERY CAFE Marks and the value of those rights when it registered the Domain Name.
Considering the purposes of the Policy, by parking the Domain Name at a website inviting Internet users to inquire about purchasing the Domain Name, the Panel finds it more likely than not that Respondent registered and used the Domain Name primarily for the purpose of selling, renting, or otherwise transferring registration of it to Complainant or another party for valuable consideration in excess of Respondent's out-of-pocket costs directly related to the Domain Name. Such conduct constitutes bad faith.
The Panel therefore holds that Complainant has satisfied paragraph 4(a)(iii) of the Policy. 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 Name be transferred to Complainant.
Harrie R. Samaras
Sole Panelist
Date: March 31, 2016
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