Complainant is Cava Group, Inc., United States of America (the “United States”), represented by CSC Digital Brand Services AB, Sweden.
Respondent is Super Privacy Service LTD c/o Dynadot, United States. 2. The Domain Name and Registrar
The disputed domain name The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on January 27, 2020. On January 27, 2020, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On January 28, 2020, 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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on January 29, 2020. In accordance with the Rules, paragraph 5, the due date for Response was February 18, 2020. The Response was filed with the Center on February 18, 2020. The Center appointed John C. McElwaine as the sole panelist in this matter on February 27, 2020. 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. On March 11, 2020, a procedural order was issued to both Complainant and Respondent. Regarding the procedural order issued to Complainant, the Panel requested that Complainant to provide necessary information to establish that Cava Group, Inc. has sufficient rights to have standing to file a UDRP Complaint on behalf of the trademark owner of record, Cava Holding Company. In response to the procedural order, Complainant submitted an affidavit setting forth the requested information, discussed in the “Factual Background” section below, sufficient to establish Complainant’s standing to file the UDRP Complaint. As to Respondent, the Panel noted that Respondent of record, Super Privacy Service LTD c/o Dynadot, certified facts and information of a Response in which Respondent purported to be an individual and not a privacy/proxy company. Paragraph 5(c)(viii) of the UDRP Rules requires Respondent certify the information contained in the Response. Accordingly, the Panel requested Respondent to confirm whether “the holder of the Domain Name” is (i) an individual, or, is in fact, (ii) Super Privacy Service LTD c/o Dynadot, and, if Respondent is an individual, then the Panel requests an amendment of the Response to provide the name, postal and email addresses, and the telephone and telefax numbers of Respondent in accordance with paragraph 5(c)(ii) of the UDRP Rules. Respondent has provided the requested information and has satisfied the Panel that Respondent is in fact an individual. 4. Factual Background Complainant is Cava Group, Inc., a Delaware corporation. Complainant is the owner and operator of a chain of restaurants in the United States as well as the owner of a line of grocery store items. According to the affidavit submitted by Complainant in response to the Panel’s procedural order, Cava Group, Inc., is the parent company and 100% owner of Cava Holding Company, a Delaware corporation, which is the owner of the alleged United States trademark registrations for the CAVA and the application for the CAVA TABLE trademark. Cava Holding Company owns two (2) United States federal trademark registrations for the CAVA trademark, both of which issued on October 11, 2011: CAVA – United States Registration No. 4037532, in International Classes 29, 30 and 43; and CAVA & design – United States Registration No. 4037533, in International Class 43. Cava Holding Company also is the owner of a pending intent-to-use application to register the CAVA TABLE trademark, Serial No. 88336128, which Cava Holding Company filed on March 12, 2019. Furthermore, Complainant is the owner of the Respondent is an individual located in California, United States. The Domain Name was registered with the Registrar on March 15, 2019. Based on evidence of record, the Domain Name resolves to a “dan.com” website that lists the Domain Name for sale for USD 429,500. To the Panel’s knowledge, based on the evidence of record, the Domain Name has not been used for any other purpose since Respondent alleges it purchased the Domain Name in June 2019. 5. Parties’ Contentions A. Complainant Complainant is the owner and operator of a chain of restaurants in the United States as well as the owner of a line of grocery store items, all of which operate under the CAVA trademark. Specifically, Complainant asserts that it launched its flagship restaurant CAVA Mezza Grille, in Rockville, Maryland, in 2006. In 2015, Complainant launched its first chef-casual restaurant, CAVA Grill. Today, Complainant claims to operate nearly 80 CAVA Grill locations. Complainant further alleges that it has received various awards and recognition in the industry, including being recognized in 2015 as one of America’s Eight (8) Best Airport Restaurants by Inside Hook, and winning the coveted Restaurateur of the Year and Favorite Fast Bites of the Year awards in the 2017 RAMMY awards organized by the Restaurant Association of Metropolitan Washington. In addition, Complainant asserts to have a large Internet presence which provides information about its menu, products and recipes on its website at “www.cava.com” and also on its blog at “www.forthosewhosavor.com”. Complainant alleges that its website at its primary domain name With respect to the first element of the Policy, Complainant contends that the Domain Name is confusingly similar to Complainant’s registered CAVA trademark and is identical to Complainant’s applied-for CAVA TABLE trademark. With respect to the second element of the Policy, Complainant alleges that Respondent has no rights or legitimate interests in the Domain Name because (i) Respondent is not commonly known by the Domain Name, (ii) Respondent is not authorized to use Complainant’s CAVA trademark, (iii) Respondent is using a privacy/proxy service, and (iv) Respondent is using the Domain Name to host a website offering the Domain Name for sale. Lastly, with respect to the third element of the Policy, Complainant asserts that, on balance of the facts, Respondent’s registration and use of the Domain Name in bad faith is evident because Complainant and Complainant’s CAVA trademark are known internationally, and thus, Respondent knew, or should have known, of Complainant and Complainant’s trademark rights. In addition, Complainant alleges that Respondent registered the Domain Name to intentionally create a likelihood of confusion with Complainant’s CAVA trademark and recently applied-for CAVA TABLE trademark in order to attract Internet users to the Domain Name for Respondent’s own financial gain. Complainant points out that Respondent has passively held the Domain Name and that Respondent is currently offering to sell the Domain Name, which constitutes bad faith because Respondent has demonstrated an intent to sell, rent, or otherwise transfer the Domain Name for valuable consideration in excess of its out-of-pocket expenses. Complainant also alleges that Respondent is utilizing a privacy/proxy service to hide Respondent’s true identity, which can also be evidence of bad faith. B. Respondent In response to the allegations asserted by Complainant that the Domain Name is confusingly similar to Complainant’s CAVA trademark, Respondent asserts that Complainant does not have the exclusive right to use of “cava table” because it has a dictionary meaning, namely, a table filled with a sparkling Spanish wine. With regard to Complainant’s assertions that Respondent has no rights or legitimate interests in the Domain Name, Respondent claims that its demonstrable preparations to use the Domain Name are evidenced by the facts surrounding Respondent’s purchase of the Domain Name in June 2019. Lastly, with respect to Complainant’s allegations regarding Respondent’s registration and use of the Domain Name in bad faith Respondent’s main contention is that Respondent acquired the Domain Name for use in connection with a blog to document Respondent’s “family travelling and enjoying the food and wine ‘from table to table’ across Spain this summer.” Respondent’s alleged evidence is the invoice allegedly issued for the purchase of the Domain Name. Respondent further contends that (i) despite Complainant’s assertions, the CAVA trademark is in fact not well known internationally, and as such, Respondent cannot have known or should have known of Complainant or Complainant’s trademark and (ii) “cava table” is a dictionary term, the “market” is saturated with “cava” marks similar to Complainant’s trademark and Respondent’s intended use in connection with said dictionary meaning. 6. Discussion and Findings Paragraph 4 of the Policy requires that, in order to succeed in this UDRP proceeding, Complainant must prove its assertions with evidence demonstrating: (i) the 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 Domain Name; and (iii) the Domain Name has been registered and is being used in bad faith. Complainant bears the burden of establishing each of the three elements by a preponderance of the evidence. See, e.g., F. Hoffmann-La Roche AG v. Relish Enterprises,WIPO Case No. D2007-1629. Having considered the Complaint, the Policy, the Rules, the Supplemental Rules and applicable principles of law, the Panel’s findings on each of the above cited elements are as follows. A. Identical or Confusingly Similar Paragraph 4(a)(i) of the Policy requires Complainant shows that the Domain Name in question is identical or confusingly similar to a trademark or service mark in which Complainant has rights. As an initial matter, Complainant has standing to bring this proceeding because it is the parent company and 100% owner of Cava Holding Company, a Delaware corporation, which is the owner of the alleged United States trademark registrations for the CAVA and the application for the CAVA TABLE trademark. See Grupo Televisa, S.A., Televisa, S.A. de C.V., Estrategia Televisa, S.A. de C.V., Videoserpel, Ltd. v. Party Night Inc., a/k/a Peter Carrington,WIPO Case No. D2003-0796 (“Paragraph 4(a)(i) of the Policy requires, as one element to be proved, that the disputed domain name be identical or confusingly similar to a trademark or service mark in which Complainants have rights. These words do not require that Complainants be the owner of the mark and would include, for example, a licensee of the mark.”); Kao Brands Company, John Frieda, John Frieda Professional Hair Care Inc. v. Evgeniy Sechin,WIPO Case No. D2010-2247 (As the wholly owned subsidiary of its parent company, Kao Kabushiki Kaisha (also t/a Kao Corporation), the complainant was considered to have rights in the trademarks owned by such parent company); see also section 1.4.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”)and Yamaha Motor Corporation, U.S.A. v. Domain Admin, Hush Whois Protection Ltd., WIPO Case No. D2018-1359. Ownership of a trademark registration is generally sufficient evidence that a complainant has the requisite rights in a mark for purposes of paragraph 4(a)(i) of the Policy. See WIPO Overview 3.0 , section 1.2 . Complainant has provided evidence that it is the parent of the holding company that is the owner of the United States federal trademark registrations for the CAVA trademark dating from October 11, 2011, in connection with restaurant services and grocery products. The Domain Name is wholly comprised of Complainant’s CAVA trademark plus the additional word, “table”. It is well-established that the addition of other terms (whether descriptive, geographical, pejorative, meaningless, or otherwise) to a trademark in a domain name does not prevent a finding of confusing similarity. See WIPO Overview 3.0, section 1.8. Here, “table” is related to Complainant’s restaurant services, which is made even more evident by the fact that Complainant’s subsidiary has a pending trademark application for CAVA TABLE. Accordingly, the Panel finds that the Domain Name is confusingly similar to Complainant’s CAVA trademark in which Complainant has valid trademark rights under the UDRP. Therefore, Complainant has satisfied paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests Under the Policy, paragraph 4(a)(ii), Complainant has the burden of establishing that Respondent has no rights or legitimate interests in the Domain Name. Complainant need only make a prima facie showing on this element, at which point the burden of production shifts to Respondent to present evidence that it has rights or legitimate interests in the Domain Name. If Respondent has failed to do so, Complainant is deemed to have satisfied its burden under paragraph 4(a)(ii) of the Policy. See Vicar Operating, Inc. v. Domains by Proxy, Inc. / Eklin Bot Systems, Inc.,WIPO Case No. D2010-1141; see also Nicole Kidman v. John Zuccarini, d/b/a Cupcake Party,WIPO Case No. D2000-1415; Inter-Continental Hotels Corporation v. Khaled Ali Soussi,WIPO Case No. D2000-0252. Respondent may establish a right or legitimate interest in the Domain Name by demonstrating in accordance with paragraph 4(c) of the Policy any of the following: “(i) before any notice to you 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 (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 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.” The Panel accepts that Complainant has not authorized Respondent to use the CAVA trademark. The Panel further accepts that Respondent has not become commonly known by the Domain Name. Accordingly, Complainant has made a prima facie showing that Respondent lacks any rights or legitimate interests in the Domain Name. Complainant further contends that Respondent is not actively using the Domain Name in connection with a bona fide offering of goods or services or that Respondent is not making a legitimate noncommercial or fair use of the Domain Name, as evidenced by the fact that the Domain Name redirects to a “dan.com” webpage were the Domain Name is being offered for sale for USD 429,500, a price that far exceeds Respondent’s reasonable out-of-pocket expenses in connection with purchase of the Domain Name. Respondent does not dispute that Respondent is not commonly known by the Domain Name or that Respondent is not an authorized licensee of Complainant’s CAVA trademark. Rather, in response to Complainant’s allegations that Respondent lacks any rights or legitimate interests in the Domain Name Respondent claims that the Domain Name is comprised of dictionary terms and, before any notice of the subject dispute, Respondent made demonstrable preparations to use the Domain Name in connection with a legitimate noncommercial use, namely, for personal use to host a blog to document Respondent’s family vacation. According to WIPO Overview 3.0, section 2.10.1, panels have recognized that merely registering a domain name comprised of a dictionary word or phrase does not by itself automatically confer rights or legitimate interests on the respondent; panels have held that mere arguments that a domain name corresponds to a dictionary term/phrase will not necessarily suffice. In order to find rights or legitimate interests in a domain name based on its dictionary meaning, the domain name should be genuinely used, or at least demonstrably intended for such use, in connection with the relied-upon dictionary meaning and not to trade off third-party trademark rights. Examples of evidence of demonstrable preparations to use the Domain Name as a personal blog would include proof of a genuine (i.e., not pretextual) plans or preparations to utilize the Domain Name as a personal blog, credible signs of pursuit of the stated intended use of the Domain Name, and/or other evidence generally pointing to a lack of indicia of cybersquatting intent. See, e.g., WIPO Overview 3.0, section 2.2. While such indicia are assessed pragmatically in light of the case circumstances, clear contemporaneous evidence of bona fide pre-complaint preparations is required. If not independently verifiable by the panel, claimed examples of use or demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services cannot be merely self-serving, but should be inherently credible and supported by relevant pre-complaint evidence. The Panel finds that Respondent’s asserted rights or legitimate interests in the Domain Name are nothing more than a pretext. Respondent’s only evidence in support of its claim that Respondent registered the Domain Name for use in connection with a personal, family blog is a copy of an invoice dated June 28, 2019. Production of an invoice, without any other corroborating evidence is, at best, an indication of Respondent’s desire to purchase the Domain Name and does not, by itself, provide evidence in any way relating to preparations to use the Domain Name for a legitimate purpose. Moreover, it is telling that Respondent could not, or did not, offer other evidence supporting its alleged legitimate use of the Domain Name, since this evidence would be in the custody and control of Respondent. Respondent’s alleged intended use of “cava table” could be plausible, if for example, it was combined with other credible supporting evidence, such as airline reservations, hotel reservations, itineraries, schedules, and other travel research. However, Respondent has not provided any other corroborating evidence of Respondent’s demonstrable preparations to use the Domain Name in connection with a personal, family blog. In sum, the Panel is not able to square Respondent’s claims of a bona fide intention to use the Domain Name without some evidence of the planned family Summer trip to Spain, which surely exists, if true. Rather, since the time Respondent allegedly purchased the Domain Name in June 2019, the only demonstrable use of the Domain Name has been to host a website listing the Domain Name for sale for nearly USD 430,000. It begs the question that if Respondent intended to use the Domain Name for a personal, family blog, why the Domain Name has been listed for sale at a price 430 times the cost Respondent paid to obtain the Domain Name. Furthermore, the Panel has doubts that Respondent would purchase the Domain Name for nearly USD 1,000 for use as a personal blog for family vacation when alternative domain names were likely available for far less money. Complainant has made a prima facie showing that Respondent lacks any rights or legitimate interests in the Domain Name and the Panel finds, on balance based on the evidence of record, that Respondent has failed to rebut Complainant’s prima facie showing. Specifically, the Panel finds that Respondent’s asserted rights or legitimate interests in the Domain Name do not meet its evidentiary burden as Respondent has not provided any clear contemporaneous evidence of Respondent’s bona fide pre-complaint preparations to use the Domain Name as a personal, family blog to document a summer trip to Spain. Accordingly, the Panel accepts that the second element of the Policy is established by Complainant, and Respondent has no rights or legitimate interests in respect of the Domain Name, pursuant to the Policy, paragraph 4(a)(ii). C. Registered and Used in Bad Faith Under paragraph 4(a)(iii) of the Policy, Complainant must show that Respondent registered and is using the Domain Name in bad faith. A non-exhaustive list of factors constituting bad faith registration and use is set out in paragraph 4(b) of the Policy. Complainant has alleged that the following factors indicate Respondent’s bad faith registration and use of the Domain Name: (i) Respondent, having registered a domain name that is confusingly similar to Complainant’s CAVA trademark, knew of and specifically targeted Complainant’s trademark; (ii) the Domain Name was targeted and acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to Complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name; and (iii) Respondent utilized a privacy services to hide its identity. In response, Respondent contends that the following factors indicate Respondent’s lack of bad faith: (i) Respondent’s alleged intention to use the Domain Name was for a personal, family blog; (ii) Respondent is not one of Complainant’s competitors and has not registered the Domain Name to prevent Complainant from reflecting Complainant’s trademark in the Domain Name; and (iii) the Domain Name is descriptive and Respondent intends to use the Domain Name in connection with the descriptive meaning associated therewith. For the reasons detailed below, the Panel finds that, based on a balance of the probabilities, it is more likely than not that Respondent registered and is using the Domain Name in bad faith. Paragraph 4(b)(i) of the Policy indicates that bad faith exists where a respondent acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the domain name. Complainant has submitted screenshots of the website hosted at the Domain Name which show that Respondent is offering to sell the Domain Name for valuable consideration in excess of Respondent’s documented out-of-pocket costs directly related to the domain name, namely, Respondent purchased the Domain Name for nearly USD 1,000 and is offering to sell the Domain Name for nearly USD 430,000. See CEAT Limited, CEAT Mahal, v. Vertical Axis Inc. / Whois Privacy Services Pty Ltd,WIPO Case No. D2011-1981 (finding bad faith as a result of respondent’s general offer to sell the domain name); Virgin Enterprises Limited v. Balticsea LLC / Contact Privacy Inc. Customer 0134432592,WIPO Case No. D2016-2148 (finding that a general offering to sell the domain name is evidence of registration of the domain name in bad faith). The Panel finds that such a drastic difference between Respondent’s purchase price for the Domain Name and Respondent’s current selling price for the Domain Name tends to, in the absence of mitigating facts or evidence to the contrary, indicate bad faith. See CBS Broadcasting Inc., f/k/a CBS Inc v. Nabil Z. aghloul,WIPO Case No. D2004-0988; Howard Jarvis Taxpayers Association v. Paul McCauley,WIPO Case No. D2004-0014; Wal-Mart Stores, Inc. v. Richard MacLeod d/b/a For Sale,WIPO Case No. D2000-0662. Here, as detailed above, the Panel finds on the record before it that Respondent’s alleged intention in registering the Domain Name was merely a pretext and that it is more likely than not that Respondent acquired the Domain Name primarily for the purpose of selling, renting, or otherwise transferring the Domain Name registration to Complainant, for valuable consideration in excess of documented out-of-pocket costs directly related to the Domain Name as a result of the creation of a likelihood of confusion with Complainant’s CAVA trademark. Specifically, the Panel finds that Respondent’s failure to establish a legitimate purpose for registering the Domain Name, the proximity in time to registration of the Domain Name with Complainant’s subsidiary’s application for the identical words, and the current offer to sell the Domain Name for nearly 430 times the cost to Respondent to acquire the Domain Name, are sufficient facts to establish Respondent’s bad faith. See Sanofi v. Alessandro Stefani,WIPO Case No. D2017-1610 (the panel found purported blog to be pretextual and found bad faith); see also Marriott International, Inc. v. PJ Trujillo, Colorado Airport Transportation LLC,WIPO Case No. D2015-0758, Volkswagen Group of America, Inc. v. Michael Oates, Captex Commercial Properties,WIPO Case No. D2017-0815, Pepperdine University v. The CJ Group, LLC.WIPO Case No. D2007-1389. Moreover, the Panel also notes that the nature of the disputed domain name and that the addition of the word “table” to the CAVA trademark may lead Internet users into believing that the Domain Name is related to Complainant’s restaurant services, which is made even more evident by the fact that Complainant’s subsidiary has a pending trademark application for “cava table”. For these reasons, the Panel holds that Complainant has met its burden of showing that Respondent registered and is using the Domain Name in bad faith under paragraph 4(a)(ii) 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 John C McElwaine
Sole Panelist
Date: March 25, 2020
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