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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

Taco Bell Corporation v. Michael Pelley

Case No. D2000-0850

 

1. The Parties

Complainant: Taco Bell Corporation, 17901 Von Karmen Avenue, Irvine, California 92614, USA, represented by Laraine Pacheco, Esq., Weinberg Legal Group, 2390 East Camelback Road, Suite 250, Phoenix, AZ 85016, USA.

Respondent: Michael Pelley, 2652 Attleboro Place, Apopka, FL 32703, USA.

 

2. The Domain Name(s) and Registrar(s)

Domain Name: <taco-bell.com>

Registrar: Network Solutions, 505 Huntmar Park Drive, Herndon, VA 20170, USA.

 

3. Procedural History

On July 24, 2000, Complainant, through counsel, filed a complaint with the WIPO Arbitration and Mediation Center pursuant to the Uniform Domain name Dispute Resolution Policy adopted by the Internet Corporation for Assigned names and Numbers (ICANN) on October 24, 1999. (hereinafter Policy)

On July 21, 2000, Complainant, through counsel, submitted an amendment to the originally filed complaint in accordance with the rule 4(b) of the Rules for Uniform Domain Name Dispute Resolution Policy. (hereinafter Rules)

On August 21, 2000, a notification of Complaint and Commencement of Administrative Proceeding was served.

On September 12, 2000, a Notification of Respondent Default was served.

On September 12, 2000, an email communication was sent to Tamara Hutchison, WIPO Case Manager by Respondent.

On October 25, 2000, this case was transmitted to the panelist for a decision.

This panelist has not received any requests from Complainant or Respondent regarding further submissions, waivers or extensions of deadlines, and the Panelist has not found it necessary to request any further information from the parties (taking note of Respondent’s default in responding to the complaint). The proceedings have been conducted in English.

 

4. Factual Background

Complainant first used the TACO BELL mark in 1964 and currently owns six (6) federal registrations and one hundred (100) registrations worldwide for TACO BELL trademarks.

Respondent registered the domain name taco-bell.com on February 8, 1999, as reflected in the Whois database maintained by Network Solutions, Inc.

The TACO BELL mark is fanciful and originated from a small restaurant originally incorporated in the State of California in 1962. The mark, which is used in connection with Complainant’s restaurant services, is perhaps the most recognized brand name for Mexican fast-food restaurants in the world. In 1999, sales at TACO BELL restaurants in the United States and abroad exceeded five billion U.S. dollars. Advertising expenditures in the United States approximated 254 million U.S. dollars and internationally in excess of seven million U.S. dollars.

Many television viewers have seen a TACO BELL commercial. TACO BELL commercials are shown during prime time and, on occasion, during high profile events in virtually every region of the United States. TACO BELL is a leading brand in the Mexican fast-food category in the United States and internationally and has been so virtually since its launch in 1964.

TACO BELL restaurants are prolific. TACO BELL restaurants number over 7, 000 nationwide and are located in all fifty (50) states. In fact, there are three TACO BELL restaurants located in Respondent’s home town of Apopka, Florida.

Between March 9, 1999, and July 6, 2000, numerous communications passed between Complainant and Respondent in an effort to resolve dispute over the domain name taco-bell.com. There was no resolution.

 

5. Parties’ Contentions

Complainant contends that the domain name "taco-bell.com" is confusingly similar to Complainant’s registered trade mark TACO BELL, that the Respondent has no rights or legitimate interest in respect of the domain name, and that the domain name is registered and is being used in bad faith.

Respondent has defaulted with respect to these proceedings.

 

6. Discussion and Findings

It is essential to dispute resolution proceedings that fundamental due process requirements be met. Such requirements include that a respondent has notice of proceedings that may substantially affect its rights. The Policy, and the Rules for Uniform Domain Name Dispute Resolution Policy establish procedures intended to assure that respondents are given adequate notice of proceedings commenced against them, and a reasonable opportunity to respond (see, e.g., para. 2(a), Rules).

In this case, the Panel is satisfied that the Center took all steps reasonably necessary to notify the Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of the Respondent to furnish a reply is not due to any omission by the Center.

Paragraph 4(a) of the Policy sets forth three elements that must be established by a complainant to merit a finding that a respondent has engaged in abusive domain name registration, and to obtain relief. These elements are that:

(i) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and

(ii) Respondent has no rights or legitimate interests in respect of the domain name; and

(iii) Respondent’s domain name has been registered and is being used in bad faith.

Each of the aforesaid three elements must be proved by a complainant to warrant relief.

When Respondent has defaulted, and has not responded to the allegations of Complainant, the Panel is directed to decide this administrative proceeding on the basis of the complaint (Rules, para. 14(a)), and certain factual conclusions may be drawn by the Panel on the basis of Complainant’s undisputed representations (id. para. 15(a)).

Here, Complainant is the holder of a trade mark registration for the mark TACO BELL and has used that mark in commerce for a substantial period of time (see Factual Background, supra). Complainant’s US federal registration of the TACO BELL mark establishes a presumption of its validity in U.S. law. The Panel determines that Complainant has rights in the mark TACO BELL.

The face of the complaint indicates that Complainant’s rights in the mark arose prior to Respondent’s registration of the disputed domain name "taco-bell.com"

Complainant contends that the disputed domain name is confusingly similar to complainant’s registered mark TACO BELL . Respondent has not contested this issue. This panelist must therefore look to the facts and allegations asserted in the complaint. Absent extraordinary circumstances, this Panel must find that allegations in the complaint are true. Here, it is found that the disputed domain name, taco-bell.com is confusingly similar to Complainant’s mark, TACO BELL, within the meaning of paragraph 4(a)(i) of the Policy.

Paragraph 4(a) of the policy requires that Respondent have no legitimate interest in the disputed domain name. Complainant must normally prove this to be true. This is often a difficult issue. Here Complainant alleges in paragraph 12 (c) of the complaint that, "Respondent has not rights or legitimate interest in respect of this domain name. Respondent’s domain name has been registered in bad faith". Respondent, however, has defaulted by failing to provide a timely response as required by paragraph 5 (a) of the rules. Failure to timely respond is an indicia that Respondent has no legitimate interest here.

This panelist, absent a timely response by Respondent, or convincing evidence to the contrary, must find in accordance with the allegations asserted in the complaint. Accordingly, it is decided that Respondent has no legitimate interest in the disputed domain name and that Respondent has registered the domain name taco-bell.com in bad faith.

7. Decision

This panelist finds that taco-bell.com is confusingly similar to Complainant’s Trademark TACO BELL, that the Respondent has no rights or legitimate interests in respect of the disputed domain name and that the disputed domain name has been registered and is being used in bad faith, within the meaning of paragraph 4(a) of the Policy. This Panel orders the domain name taco-bell.com transferred to the Complainant, Taco Bell Corporation.

 

 


 

Kevin H. Fortin, Esq.
Sole Panelist

Dated: October 31, 2000

 

Источник информации: http://www.internet-law.ru/intlaw/udrp/2000/d2000-0850.html

 

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