Complainant is European Refreshments of Drogheda, Ireland / The Coca-Cola Company of Atlanta, Georgia, United States of America, represented by Bates & Bates LLM, United States of America (“United States”).
Respondent is Domains By Proxy, LLC of Scottsdale, Arizona, United States of America / DNS Admin, Discover Domains of Hyattsville, Maryland, United States. 2. The Domain Name and Registrar
The disputed 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 November 10, 2017. On November 13, 2017, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On the same day, 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 November 14, 2017 providing the registrant and contact information disclosed by the Registrar, and inviting Complainant to submit an amendment to the Complaint. Complainant filed an amended Complaint on November 17, 2017.
The Center verified that the Complaint together with the amended Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy approved by doMEn, d.o.o. (“doMEn”) (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy approved by doMEn (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 November 20, 2017. In accordance with the Rules, paragraph 5, the due date for Response was December 10, 2017. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on December 11, 2017.
The Center appointed Georges Nahitchevansky as the sole panelist in this matter on December 26, 2017. 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 European Refreshments is a subsidiary of Complainant The Coca-Cola Company. Complainant European Refreshments is the owner of the mark APPLETISER which has been used in connection with a sparkling fruit juice. Complainant European Refreshments owns a number of trademark registrations for the mark APPLETISER in over 90 jurisdictions. These registrations include, inter alia, an international trademark registration for APPLETISER, registered on October 10, 2003 (Registration No. 818796) and which extends to a number of jurisdictions, including Montenegro, and a registration in the United States (Registration No. 2998392), which issued to registration of September 20, 2005.
Complainant The Coca-Cola Company is the owner of several domain names based on the APPLETISER trademark, including , which is used to promote and provide information regarding the APPLETISER products.
Respondent, DNS Admin, Discover Domains, is the registrant of the disputed domain name and appears to be based in the United States in Hyattsville, Maryland. Respondent registered the disputed domain name on February 10, 2017. The disputed domain name currently resolves to a parked page with the legend “website coming soon!” 5. Preliminary Issue Concerning Consolidation of Multiple Complainants
In assessing whether a complaint filed by multiple complainants can be brought against a single respondent, panels typically consider whether (1) the complainants have a specific common grievance against the respondent, and (ii) it would be equitable and procedurally efficient to permit the consolidation. See section 4.11.1 of the WIPO Overview of WIPO Panel Views on Selected UDRP Questions, Third Edition (“WIPO Overview 3.0”). Here, on the evidence presented, none of which is contested by Respondent, consolidation is proper. Complainant European Refreshments is a subsidiary of The Coca-Cola Company and both parties have a common grievance against Respondent’s registration and use of the disputed domain name given that European Refreshments is the owner of an APPLETISER mark and The Coca-Cola Company the owner of multiple domain names through which APPLETISER products are promoted. Consequently, allowing consolidation in this instance would be procedurally efficient.
Complainants European Refreshments and The Coca-Cola Company are hereinafter referred to collectively and individually as “Complainant”. 6. Parties’ Contentions A. Complainant
Complainant asserts that it owns rights in the APPLETISER mark based on the use of the APPLETISER mark since 1965 in connection with sparkling fruit juice, and based on the registration of the APPLETISER mark in over 90 countries.
Complainant contends that the disputed domain name is confusingly similar to Complainant’s APPLETISER mark because it contains the APPLETISER mark in its entirety. Complainant also contends that the generic Top-level Domain (“gTLD”) extension “.me” is of no import and should be disregarded for purposes of assessing confusing similarity under the Policy.
Complainant argues that because it has established prior rights in and to its APPLETISER mark, Respondent’s registration and use of the disputed domain name, which solely consists of the APPLETISER mark, does not, and cannot, constitute a legitimate interest. Complainant further contends that Respondent’s lack of a legitimate interest is confirmed by Respondent’s lack of use of the disputed domain name for an active website.
Finally, Complainant asserts that Respondent registered and has used the disputed domain name in bad faith as the disputed domain name is identical to the APPLETISER mark and there is thus no legitimate use that Respondent could make of the disputed domain name. Complainant further asserts that Respondent’s registration and use of the disputed domain name is in bad faith as Respondent has not made any active use of the disputed domain name and has only attempted to sell such to Complainant for profit. B. Respondent
Respondent did not reply to Complainant’s contentions. 7. Discussion and Findings
Under paragraph 4(a) of the Policy, to succeed Complainant must satisfy the Panel that:
(i) the disputed 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 disputed domain name; and
(iii) the disputed domain name was registered and is being used in bad faith.
Here, although Respondent has failed to respond to Complaint, the default does not automatically result in a decision in favor of Complainant, nor is it an admission that Complainant’s claims are true. The burden remains with Complainant to establish the three elements of paragraph 4(a) of the Policy by a preponderance of the evidence. A Panel, however, may draw appropriate inferences from a respondent’s default in light of the particular facts and circumstances of the case, such as regarding factual allegations that are not inherently implausible as being true. See WIPO Overview 3.0 section 4.3; see also, The Knot, Inc. v. In Knot We Trust LTD,WIPO Case No. D2006-0340. A. Identical or Confusingly Similar
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 1.2.1. Complainant has provided evidence that it owns and uses the APPLETISER mark in connection with sparkling fruit juices. Complainant has also provided evidence that the APPLETISER mark has been registered in numerous countries throughout the world, including in the United States (where Respondent is purportedly located) and Montenegro (the country to which the “.me” country code Top-Level Domain (“ccTLD”) extension relates), well before Respondent registered the disputed domain name.
With Complainant’s rights in the APPLETISER mark established, the remaining question under the first element of the Policy is whether the disputed domain name (typically disregarding the ccTLD extension “.me”) is identical or confusingly similar with Complainant’s mark. See, Mozilla Foundation and Mozilla Corporation v. Limpkin Walker,WIPO Case No. DME2008-0007. The threshold for satisfying this first element is low and generally panels have found that fully incorporating the identical mark in a disputed domain name is sufficient to meet the threshold.
In the instant proceeding, the disputed domain name is identical to Complainant’s APPLETISER mark as it incorporates and solely consists of the APPLETISER mark in its entirety. The Panel therefore finds that Complainant has satisfied the requirements of paragraph 4(a)(i) of the Policy in establishing its rights in Complainant’s APPLETISER mark and in showing that the disputed domain name is identical or confusingly similar to that trademark B. Rights or Legitimate Interests
Under paragraph 4(a)(ii) of the Policy, the complainant must make at least a prima facie showing that the respondent possesses no rights or legitimate interests in a disputed domain name. See also, Malayan Banking Berhad v. Beauty, Success & Truth International,WIPO Case No. D2008-1393. Once the complainant makes such a prima facie showing, the burden of production shifts to the respondent, though the burden of proof always remains on the complainant. If the respondent fails to come forward with evidence showing rights or legitimate interests, the complainant will have sustained its burden under the second element of the UDRP.
From the record in this case, it appears that Respondent was aware of Complainant and its APPLETISER mark when Respondent registered the disputed domain name, particularly as Respondent has not made any bona fide use of the disputed domain name for any product or service and appears to have merely registered the domain name and then contacted Complainant to offer the domain name for sale.
Given that the disputed domain name solely consists of Complainant’s APPLETISER mark, and given Respondent’s failure to file a response in this matter, it appears more likely than not based on the evidence submitted that Respondent registered the disputed domain to somehow capitalize on its likely association with Complainant and not for a legitimate or bona fide purpose.
Given that Complainant has established with sufficient evidence that it owns rights in the APPLETISER mark, and given Respondent’s above noted actions and failure to file a response, the Panel concludes that Respondent does not have a right or legitimate interest in the disputed domain name and that none of the circumstances of paragraph 4(c) of the Policy are evident in this case. C. Registered and Used in Bad Faith
The Panel finds that Respondent’s actions indicate that Respondent registered and is using the disputed domain name in bad faith.
Paragraph 4(b) of the Policy provides a non-exhaustive list of circumstances indicating bad faith registration and use on the part of a domain name registrant, namely:
“(i) circumstances indicating that you have registered or you have 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 trademark or service mark or to a competitor of that complainant, for valuable consideration in excess of your documented out-of-pocket costs directly related to the domain name; or
(ii) you have registered the domain name in order to prevent the owner of the trademark or service mark from reflecting the mark in a corresponding domain name, provided that you have engaged in a pattern of such conduct; or
(iii) you have registered the domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the domain name, you have intentionally attempted to attract, for commercial gain, Internet users to your web site or other on-line location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of your website or location or of a product or service on your web site or location.”
In the present case, Respondent has registered the disputed domain name that solely consists of Complainant’s APPLETISER mark with the ccTLD “.me”. Such combination creates a likelihood of confusion by suggesting to consumers that the disputed domain name concerns or related to Complainant’s APPLETISER products. Given that Respondent contacted a representative of Complainant to offer the disputed domain name for sale suggests that Respondent was aware of Complainant and its APPLETISER mark when Respondent registered the disputed domain name. Needless to say, given that the uncontested evidence shows that Respondent registered a disputed domain name that is identical to Complainant’s APPLETISER mark, has not made any bona fide use of the disputed domain name for almost a year, and contacted Complainant through a domain name broker to offer the disputed domain name for sale, it appears more likely than not that Respondent specifically targeted Complainant and its APPLETISER mark, and has done so opportunistically and in bad faith.
The Panel also notes that Respondent has sought to conceal its identity or whereabouts by not only using a privacy service, but by using what appears to be false contact information – such as a nonexistent address and zip code in the United States. Such attempts by Respondent to conceal its identity further underscore that Respondent is acting in bad faith, particular in view of Respondent’s failure to participate in this proceeding.
Accordingly, the Panel finds that Complainant succeeds under this element of the Policy 8. Decision
For 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 be transferred to Complainant.
Georges Nahitchevansky
Sole Panelist
Date: January 9, 2018
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