Complainant is Xyience Beverage Company, LLC, United States of America (“United States” or “U.S.”), represented by Schwegman Lundberg & Woessner, P.A., United States.
Respondent is Network Solutions, LLC, United States / Mary Curtis, United States.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 10, 2021. On September 13, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 14, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to Complainant on September 14, 2021, 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 September 28, 2021.
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 and 4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on September 29, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 19, 2021. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on October 21, 2021.
The Center appointed Lynda J. Zadra-Symes as the sole panelist in this matter on November 2, 2021. 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 BackgroundComplainant is a subsidiary of Keurig Dr. Pepper, Inc., one of the largest food and beverage companies in the world. Complainant is the owner of numerous trademark registrations worldwide for marks containing or consisting of XYIENCE in association with food and beverages, including energy drinks, carbonated beverages, food bars, sports drinks, soft drinks, nutritional supplements and dietary supplements. Complainant owns several trademark registrations in the United States and internationally for the mark XYIENCE, including U.S. Trademark Registration Nos. 3,159,492, registered October 17, 2006, and 3,701,582, registered October 27, 2009, among many others.
Complainant is the owner of the domain name
The disputed domain name currently directs to a page having XYIENCE ENERGY DRINK at the top and presents an alleged promotional offer to pay licensed drivers for applying an advertisement decal to their car. The page seeks applicant information including full name, email, house address, mobile number, zip code, age/car model and bank name.
5. Parties’ Contentions A. ComplainantComplainant contends that the disputed domain name is identical to Complainant’s mark, that Respondent has no rights or legitimate interests in the disputed domain name and that the disputed domain name was registered and is being used in bad faith.
B. RespondentRespondent did not reply to the Complainant’s contentions.
6. Discussion and FindingsIn order to succeed in its claim, Complainant must demonstrate that all of the elements enumerated in paragraph 4(a) of the Policy have been satisfied:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(ii) Respondent has no rights or legitimate interests with respect to the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
Paragraph 15(a) of the Rules instructs the Panel to decide a complaint “on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable”.
A. Identical or Confusingly SimilarComplainant has demonstrated that it has rights in the trademark XYIENCE in connection with food, beverage and nutritional supplement products, and related products. The disputed domain name incorporates Complainant’s mark in its entirety. The generic Top-Level Domain (“gTLD”) suffix “.org” does not prevent a finding of confusing similarity.
Accordingly, the Panel finds that the disputed domain name is identical and confusingly similar to Complainants’ trademarks.
B. Rights or Legitimate InterestsComplainant contends that Respondent is not affiliated with or connected to Complainant in any way. At no time has Complainant licensed or otherwise endorsed, sponsored or authorized Respondent to use Complainant’s mark or to register the disputed domain name. The record is devoid of any facts that establish any rights or legitimate interests of Respondent in the disputed domain name. There is no evidence that Respondent has been commonly known by the disputed domain name or that it has any rights that might predate Complainant’s adoption and use of its XYIENCE mark.
Respondent has not made, and is not making, a legitimate noncommercial or fair use of the disputed domain name. Respondent has not used the disputed domain name in connection with the bona fide offering of goods or services.
Instead, the record indicates that Respondent was well aware of Complainant’s mark and used the disputed domain name as a phishing scam to obtain personal information from Internet users who believe they are being offered a licensed driver position by applying advertisement decals to their car bearing Complainant’s mark XYIENCE ENERGY DRINK. Thus, Respondent knowingly adopted Complainant’s mark in the disputed domain name in an effort to create the false impression that Respondent is associated with Complainant and is an authorized representative of Complainant to defraud unsuspecting consumers into providing their personal information, including their name, address, mobile number and bank name, to Respondent for Respondent’s personal profit and gain.
The Panel finds that Complainant has satisfied the requirement of paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithThe record indicates that the disputed domain name is being used in bad faith. The disputed domain name was registered more than 14 years after Complainant first adopted and used its XYIENCE marks and more than 16 years after Complainant registered the domain name
The record indicates that Respondent had actual knowledge of Complainant’s rights in its XYIENCE marks prior to registering the disputed domain name and that Respondent registered and used the disputed domain name in connection with a fraudulent scam for Respondent’s commercial gain by intentionally creating a likelihood of confusion with Complainants’ mark.
Accordingly, the Panel finds that Respondent has registered and used the disputed domain name in bad faith.
7. DecisionFor 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,
Lynda J. Zadra-Symes
Sole Panelist
Date: November 16, 2021