Complainant is The Coca-Cola Company of Atlanta, Georgia, United States of America, represented by NautaDutilh N.V., The Netherlands.
Respondent is P. Engbers of Elst, The Netherlands. 2. The Domain Name and Registrar
The disputed domain name (the “Domain Name”) is registered with SIDN through Active 24. 3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 8, 2012. On June 8, 2012, the Center transmitted by email to SIDN a request for registrar verification in connection with the Domain Name. On June 12, 2012, SIDN 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 Dispute Resolution Regulations for .nl Domain Names (the “Regulations”).
In accordance with the Regulations, articles 5.1 and 16.4, the Center formally notified Respondent of the Complaint, and the proceedings commenced on June 13, 2012. In accordance with the Regulations, article 7.1, the due date for Response was July 3, 2012. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 4, 2012.
The Center appointed Paul L. Reeskamp as the panelist in this matter on July 6, 2012. The Panel finds that it was properly constituted. The Panelist has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required to ensure compliance with the Regulations, article 9.2. 4. Factual Background
Complainant, The Coca-Cola Company, is active in the manufacture, distribution, sale and advertising of (amongst others) premium fruit juices since 1960. It is the world’s largest marketer of fruit juices and drinks.
Complainant is, inter alia, owner of the following trademark registrations:
1. Benelux trademark registration for MINUTE MAID (no. 30603), filed on May 13, 1971, for classes 29, 30, 31 and 32;
2. Community trademark registration for MINUTE MAID (no. 2091262), filed on February 16, 2001, for classes 25, 32 and 42;
3. Community trademark registration for MINUTE MAID (no. 8711921), filed on November 25, 2009, for classes 25, 32 and 43;
4. Community trademark registration for MINUTE MAID and device (no. 8477622), filed on August 6, 2009, for classes 5, 30 and 32.
Hereinafter referred to as the “Trademarks”.
Complainant also indicated to be the holder of various domain names containing the mark MINUTE MAID such as , , , and .
Respondent is P. Engbers, residing in Elst, the Netherlands. Respondent became the holder of the Domain Name on January 4, 2008. 5. Parties’ Contentions A. Complainant
Complainant bases its Complaint on the Trademarks. The Domain Name is identical or confusingly similar to Complainant’s Trademarks
According to Complainant, the Domain Name is identical or at least confusingly similar when compared to Complainant’s well-known Trademarks. Complainant argues that it is established case law that the top level domain “.nl” should be disregarded in the comparison between the Domain Name and the Trademarks. Respondent has no rights or legitimate interests in the Domain Name
According to Complainant, Respondent has no rights in the name “Minute Maid” and does not own any trademark registrations or is known in relation to the Domain Name.
Complainant furthermore alleges that Respondent is not using the Domain Name for bona fide trade practices. The Domain Name is currently inactive and therefore not associated with any activities undertaken by Respondent, which evidences that Respondent does not have any real interest in the Domain Name. Respondent has registered or is using the Domain Name in bad faith
With regard to bad-faith registration of the Domain Name, Complainant alleges that according to settled case law, bad faith is presumed when Respondent reasonably should have been aware of Complainant’s Trademarks. In this respect, Complainant refers to the fact that MINUTE MAID is a well-known trademark, which has a strong reputation and is widely known throughout the world since long ago. Complainant asserts that Respondent has registered the Domain Name in order to prevent Complainant from using it.
With regard to the bad-faith use of the Domain Name, Complainant alleges that also the passive holding of a domain name can be considered as bad-faith use. In this respect, Complainant refers to settled case law under the Uniform Domain Name Dispute Resolution Policy (UDRP). B. Respondent
Respondent did not reply to Complainant’s contentions. 6. Discussion and Findings
Article 10.3 of the Regulations provides that in the event a respondent fails to submit a response, the complaint shall be granted unless the panel considers it to be without basis in law or fact.
Based on article 2.1 of the Regulations, a request to transfer a domain name must meet three cumulative conditions:
- The domain name is identical or confusingly similar to a trademark or trade name protected under Dutch law, or other name by means of article 2.1 sub a under II of the Regulations; and
- The respondent has no rights to or legitimate interest in the domain name; and
- The domain name has been registered or is being used in bad faith.
Considering these conditions, the Panel rules as follows: A. Identical or Confusingly Similar
Complainant has based its Complaint on the Trademarks and has submitted copies of the trademark registrations from which it follows that it is the holder of the Trademarks. In addition, Complainant has submitted various documents which sufficiently evidence that the invoked trademark registrations qualify as well-known trademarks.
It is established case law that the top level domain “.nl” may be disregarded in assessing the similarity between the relevant trademark(s) on the one hand, and the domain name on the other. On this basis, the Domain Name can be considered identical to the Trademarks.
Therefore, the Panel finds that the Domain Name is identical to Complainant’s Trademarks and that Complainant has established article 2.1 sub a of the Regulations. B. Rights or Legitimate Interests
Pursuant to article 2.1 sub b of the Regulations, Complainant must demonstrate that Respondent has no rights to or legitimate interests in the Domain Name. This condition is met if Complainant makes a prima facie case that Respondent has no such rights or interests, and Respondent fails to rebut this (see for example Technische Unie B.V. and Otra Information Services v. Technology Services Ltd.,WIPO Case No. DNL2008-0002).
Respondent appears not to have any relevant trademark or trade name rights regarding the term “minute maid”. Respondent is not affiliated with Complainant and has received no consent to use the Trademarks.
Respondent did not dispute this, and the Panel could not establish any indications that any of the circumstances as described in article 3.1 of the Regulations apply, nor that Respondent in any possible other way has rights to or legitimate interests in the Domain Name. The Panel is therefore satisfied that Respondent has no rights to or legitimate interests in the Domain Name. C. Registered or Used in Bad Faith
Given the fact that Complainant’s well-known Trademarks pre-date the date of registration of the Domain Name by Respondent, the Panel is of the opinion that Respondent was aware or should have been aware of Complainant and its Trademarks when it registered the Domain Name.
The Panel furthermore emphasizes that the apparent lack of so-called active use (e.g. for the Domain Name to resolve to an active website) of the Domain Name without any active attempt to sell or to contact the trademark holder (passive holding), does not as such prevent a finding of bad faith. The specific cumulative circumstances in this case in which the Domain Name is identical to the well-known Trademarks of Complainant and in which Respondent has provided no evidence whatsoever of any actual or contemplated good-faith use by it of the Domain Name, are indicative of bad faith on the part of Respondent in its registration and/or use of the Domain Name (see Telstra Corporation Limited v. Nuclear Marshmallows,WIPO Case No. D2000-0003).
Given the above, the Panel finds that the third criterion of article 2.1 of the Regulations is also met. 7. Decision
For all the foregoing reasons, in accordance with articles 1 and 14 of the Regulations, the Panel orders that the Domain Name be transferred to the Complainant.
Paul L. Reeskamp
Panelist
Dated: July 18, 2012
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