The Complainant is Dr Pepper/Seven Up, Inc., United States of America (“United States” or “US”), represented by Schwegman Lundberg & Woessner, P.A., United States.
The Respondent is seye abe, Nigeria.
2. The Domain Name and RegistrarThe disputed domain name
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 22, 2021. On September 22, 2021, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On September 22, 2021, the Registrar transmitted by email to the Center its verification response disclosing registrant and contact information for the Domain Name which differed from that provided in the Complaint. The Center sent an email communication to the Complainant on October 1, 2021, providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amendment to the Complaint. The Complainant filed an amendment to the Complaint on October 5, 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 the Respondent of the Complaint, and the proceedings commenced on October 6, 2021. In accordance with the Rules, paragraph 5, the due date for Response was October 26, 2021. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 27, 2021.
The Center appointed Nicholas Smith as the sole panelist in this matter on November 10, 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 BackgroundThe Complainant is the successor in title to the Royal Crown Company that has since 1935 offered beverages (and in particular cola) under the trade mark RC (also known as RC Cola or Royal Crown Cola). The Complainant or its predecessors in title have sold and extensively advertised their RC Cola products for over 80 years.
The Complainant is the owner of trade marks consisting of the abbreviation “RC” (the “RC Mark”) in the United States and Canada. In the United States, the Complainant holds US registration no. 2069147 for the RC Mark in Class 32 filed on April 4, 1996, and registered on June 10, 1997. In Canada the Complainant holds UCA24679 for the RC Mark in Class 32 and registered on March 5, 1945. In addition, in Mexico the Complainant holds a registration for ROYAL CROWN COLA RC COLA in Class 32 filed on January 23, 2013, and registered on May 27, 2013 (registration no. 1370716).
The Domain Name was registered on June 20, 2021. The Domain Name resolves to a website (the “Respondent’s Website”), which reproduces a logo featuring the letters “rc” used by the Complainant and a photograph of a car advertising RC Cola with the title “Get Paid Advertising Royal Crown Cola” which appeared to be part of the administration of a RC Cola related promotion. The Complainant has no connection to the Respondent or any such promotion. The Complainant has also adduced evidence that suggests that the Respondent’s Website is connected to a form of fraud known as “car wrap scams” in which entities offer to pay members of the public to drive around with corporate logos on their car, but if a consumer signs up for the “promotion” the consumer is asked to pay a cash upfront to a “decal agent” to place the advertisement on the consumer’s vehicle. The Respondent’s Website is featured in a text scam message sent to the public in connection with such an enterprise.
5. Parties’ Contentions A. ComplainantThe Complainant makes the following contentions:
(i) the Domain Name is identical or confusingly similar to the Complainant’s RC Mark;
(ii) the Respondent has no rights nor any legitimate interests in respect of the Domain Name; and
(iii) the Domain Name has been registered and is being used in bad faith.
The Complainant is the owner of the RC Mark. It owns trade mark registrations for the RC Mark in the United States and Canada. Furthermore, the Complainant argues that it has established common law rights to RC COLA by means of extensive use and advertising.
The Domain Name consists of the RC Mark and the words “cola” and “ads” which does nothing to detract from the identity of the central element of the Domain Name being the Complainant’s RC Mark. The Domain Name is confusingly similar to the RC Mark as the dominant part of the Domain Name is the Complainant’s RC Mark.
The Respondent has no rights or legitimate interests in the Domain Name. The Respondent is not affiliated with the Complainant in any way. The Complainant has not authorized the Respondent to use and register the RC Mark or to seek the registration of any domain name incorporating the RC Mark. The Respondent is using the Domain Name to operate a site through which the Respondent purports to run a promotion related to the Complainant, however such a promotion is unauthorized by the Complainant and most likely a scam. The use of the Domain Name in order to perpetrate a fraud does not and never could confer a right or legitimate interest on the Respondent.
The Domain Name was registered and is being used in bad faith. The Domain Name was registered with full knowledge of the RC Mark. The Domain Name is being used for a promotion that deceives the unsuspecting public into believing that they could earn sums of money from the Complainant, and is using the Complainant’s trade mark to lend legitimacy to the promotion. Such use is prima facie evidence of registration and use in bad faith under paragraph 4(b)(iv) of the Policy or otherwise. The Respondent’s use of the Domain Name is calculated to create confusion with the RC Mark and to take advantage of that confusion for financial gain by defrauding visitors who think they are dealing with the Complainant.
B. RespondentThe Respondent did not reply to the Complainant’s contentions.
6. Discussion and Findings A. Identical or Confusingly SimilarTo prove this element the Complainant must have trade or service mark rights and the Domain Name must be identical or confusingly similar to the Complainant’s trade or service mark.
The Complainant is the owner of the RC Mark, having registered the RC Mark as a trade mark in the United States and Canada.
The Domain Name incorporates the RC Mark in its entirety with the addition of the terms “cola” and “ads”. The addition of words to a complainant’s mark does not prevent a finding of confusing similarity; see section 1.8 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”) and Wal-Mart Stores, Inc. v. Henry Chan,WIPO Case No. D2004-0056.
The Panel finds that the Domain Name is confusingly similar to the Complainant’s RC Mark. Consequently, the requirement of paragraph 4(a)(i) of the Policy is satisfied.
B. Rights or Legitimate InterestsTo succeed on this element, a complainant must make out a prima facie case that the respondent lacks rights or legitimate interests in the domain name. If such a prima facie case is made out, then the burden of production shifts to the respondent to demonstrate rights or legitimate interests in the domain name.
Paragraph 4(c) of the Policy enumerates several ways in which a respondent may demonstrate rights or legitimate interests in a domain name:
“Any of the following circumstances, in particular but without limitation, if found by the panel to be proved based on its evaluation of all evidence presented, shall demonstrate your rights or legitimate interests to the domain name for purposes of paragraph 4(a)(ii):
(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 trade mark or service mark rights; or
(iii) you are making legitimate noncommercial or fair use of the domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.” (Policy, paragraph 4(c)).
The Respondent is not affiliated with the Complainant in any way. It has not been authorized by the Complainant to register or use the Domain Name or to seek the registration of any domain name incorporating the RC Mark or a mark similar to the RC Mark. There is no evidence that the Respondent is commonly known by the Domain Name or any similar name. There is no evidence that the Respondent has used or made demonstrable preparations to use the Domain Name in connection with a bona fide offering of goods or services or for a legitimate noncommercial use.
Rather the Respondent is using the Domain Name to operate a website that, without the permission of the Complainant, makes reference to the Complainant (via the use of the Complainant’s RC Mark, RC logo, and reference to the Complainant’s RC Cola product) and appears to offer an opportunity for visitors to the website to earn money from the Complainant. However, the Respondent’s Website is likely part of a car wrap scam and used to commit fraud upon visitors who think that they are dealing with the Complainant. Such use is not a bona fide offering of goods or services.
The Complainant has established a prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. The Respondent has had an opportunity to rebut the presumption that it lacks rights or legitimate interests but has chosen not to do so. The Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name under paragraph 4(a)(ii) of the Policy.
C. Registered and Used in Bad FaithFor the purposes of paragraph 4(a)(iii) of the Policy, the following circumstances, in particular but without limitation, if found by the Panel to be present, shall be evidence of the registration and use of the Domain Name in bad faith:
(i) circumstances indicating that the respondent has registered or has acquired the domain name primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the complainant who is the owner of the trade mark or service mark or to a competitor of the complainant, for valuable consideration in excess of its documented out-of-pocket costs directly related to the domain name; or
(ii) the respondent has registered the domain name in order to prevent the owner of the trade mark or service mark from reflecting the mark in a corresponding domain name, provided that the respondent has engaged in a pattern of such conduct; or
(iii) the respondent has registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, the respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the respondent’s website or location or of a product or service on the respondent’s website or location.
The Panel finds that the Respondent must have been aware of the Complainant at the time the Respondent registered of the Domain Name. The RC Mark is a well-known mark having been used for over 80 years. The Respondent’s Website makes reference to the Complainant (via the use of RC Mark and RC logo) on the website. The Domain Name itself incorporates the RC Mark entirely, as well as featuring the descriptive word “cola” that, when coupled together with the RC Mark, construct the terms “rc cola” to which the Complainant claims common law rights and has extensively promoted since the 1960s. Notwithstanding the addition of “ads”, the construction of the Domain Name itself suggests an awareness of the Complainant and an intent to target. The registration of the Domain Name in awareness of the RC Mark and in the absence of rights or legitimate interests amounts to registration in bad faith.
The Respondent was using the Domain Name to intentionally attempt to attract, for commercial gain, Internet users to a website, by creating a likelihood of confusion with the RC Mark as to the source, sponsorship, affiliation or endorsement of its website. The Respondent’s Website consists of a website that appears to offer a benefit to visitors if they advertise the Complainant’s RC Cola product. However the only apparent purpose behind the conduct of the Respondent is to commit fraud upon visitors who think that they are dealing with the Complainant (and participating in a legitimate promotion offered by the Complainant). It appears both from the Domain Name itself and from the Respondent’s Website that it is highly likely that the Respondent has intentionally attempted to attract Internet users to the Respondent’s Website by means of confusion with the RC Mark, and received or intended to receive revenue for that activity. The Panel finds that such use amounts to use in bad faith.
Accordingly, the Panel finds that the Respondent has registered and is using the Domain Name in bad faith under paragraph 4(a)(iii) of the Policy.
7. DecisionFor the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name
Nicholas Smith
Sole Panelist
Date: November 18, 2021