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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Coca-Cola Company v. NW Spur, Leonard Street and Michelle Street
Case Number D2001-0406
1. The Parties
Complainant is The Coca-Cola Company, and according to its complaint, it is a corporation incorporated under the laws of the State of Delaware, USA, with its principal place of business in Atlanta, Georgia, USA.
The first Respondent in this proceeding is the entity NW Spur. The second and third Respondents, Michelle and Leonard Street, are listed as the administrative and billing contacts for the domain name in question, and all apparently share the same address in Spokane, State of Washington, USA.
2. The Domain Name and Registrar
The dispute is with respect to the following domain name (hereafter "the domain name"):
The registrar with which this domain name is registered is Network Solutions, Inc., 505 Huntmar Park Drive, Herndon, VA 20170 USA, tel. (703) 742-0400 (hereafter "the registrar").
3. Procedural History
The procedures for resolving Complaints like this one are governed by the Uniform Domain Name Dispute Resolution Policy (hereafter "The Policy") adopted by the Internet Corporation for Assigned Names and Numbers ("ICANN") on August 26, 1999, ICANN’s Rules for Uniform Domain Name Dispute Resolution Policy (hereafter "The Rules"), as well as the Supplemental Rules of the WIPO Arbitration and Mediation Center (hereafter "The Supplemental Rules").
The current dispute lies within the scope of the Policy, so that the Center does have proper jurisdiction to hear and decide this dispute. The terms and conditions of the registration agreement between Registrar NSI and the Respondents clearly incorporate the Policy, so that Respondents were notified of the existence of the Policy’s provisions for domain name dispute resolution. The Policy contains in its Paragraph 4(a) the elements to be pleaded in order for a mandatory administrative proceeding such as this one to be held: Complainant must allege that (i) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; that (ii) Respondent has no rights or legitimate interests in the domain name; and that (iii) Respondent’s domain name has been registered and is being used in bad faith. See the Policy, Paragraph 4 (a). In order to successfully make its case, the Complainant must prove each of these three elements.
An electronic copy of the complaint was filed on March 22, 2001. A hardcopy of the complaint was filed on March 26, 2001. A request for Registrar Verification was made to the Registrar of the domain name on March 27, and such Verification was made on March 28. On March 27, the Center notified the Registrar of the filing of the complaint with the Center. On March 28, notification of the complaint was sent to Respondent by various means: email to "email@example.com" and "firstname.lastname@example.org". Records provided by the Center indicate the Center also attempted to notify Respondent by fax and post/courier.
Although the Center’s records indicate problems transmitting the notifications of the complaint by fax and email to the "email@example.com" address, delivery to Respondents by post/courier and by email to the "firstname.lastname@example.org" email address appears to have been made successfully.
Under the terms of the Center’s notification to Respondent of March 28, paragraph 5, the last day for Respondents to send their Responses to the complaint to the Center and to the Complainant was April 16, 2001. Although no Response has been received, under Paragraph 6 of the Center’s notification to Respondent of March 28, citing Paragraph 14 of the Rules, the Administrative Panel may choose to go ahead and review the facts in the case and make its decision based upon the facts before it at this time, as well as drawing any appropriate inferences from Respondent’s failure to respond.
According to the Center’s compliance checklist document, the Complaint has been filed in accordance with the formal requirements of the Rules and the Center’s Supplemental Rules. The Administrative Panel for this case (hereafter "The Panel") agrees with this finding.
The Panel consists of a single Panelist pursuant to Complainant’s request, and the Panelist was duly appointed by the Center. A Statement of Acceptance and Impartiality and Independence was submitted to the Center by the Panelist on April 23, and the Panelist was appointed by the Center on April 24. A decision on the Complaint is due within 14 days of the appointment of the Panel under Paragraph 15(b) of the Rules.
There have been no further submissions by either side as of the date of this decision.
4. Factual Background
First, it is noted that because no Responses have been received from Respondents, the facts cited in the Complaint will be evaluated on their own merits.
Complainant states that for a long time prior to Respondent’s registration of the domain name "coketrader.com", Complainant has continuously owned and used the name and trademark "coke" in connection with its soft-drink beverage products and services, with large numbers of Complainant’s "Coke" marks having been registered with the U.S. government authorities, e.g. Registration Number 415755, registered on August 14, 1945, in Class 32 (Non-alcoholic beverages and syrups for beverages). See Complaint, paragraph 12(a).
Complainant also states therein that it has registered with the U.S. Patent & Trademark Office numerous other marks that combine the word "Coke" with other words, e.g. "Coke Adds Life" (registration number 1139280, registered on September 2, 1980), "Coke Classic" (registration number 1824556, registered on March 1, 1994), and "Coke Is It!" (registration number 1258784, registered on November 22, 1983).
In addition, Complainant points out that from its many years of widespread advertising using these marks, the "Coke" trademark has become one of a class of "famous marks" worldwide. See Complaint, Paragraph 12(b).
Paragraph 12 (c) of the Complaint declares that Complainant has created and registered the domain name "coke.com" for its website. A visit to this website by the Panel on April 26, 2001, confirms that it is functioning viably and legitimately in Complainant’s name.
5. Parties’ Contentions
Again, because no answer has been received from Respondents, the contentions cited herein will be those of the Complainant only.
In paragraph 12(d) of its Complaint, Complainant alleges that "Respondents own, have registered, and use the domain name "coketrader.com" for a website at "coketrader.com" where the domain name is prominently offered for sale. In addition, Respondents email address in the WHOIS listing for the "coketrader.com" domain is "email@example.com"."
As a result, Complainant asks this Panel to issue a decision to the effect that the domain name be transferred to Complainant, in accordance with Paragraph 4(i) of the Policy.
To support its contentions, Complainant, in Paragraph 11 of the Complaint, alleges that (1) the domain name is identical or confusingly similar to Complainant’s "Coke" marks referred to in Section 4 of this decision; (2) the Respondents have no rights or legitimate interests in the domain name; and (3) the domain name is registered and used in bad faith.
As regards element (1) above, the confusion element, Paragraph 12(e) of the Complaint states that Respondents are merely adding the word "trader" as a generic suffix to Complainant’s registered and famous "Coke" trademark which does not further distinguish Respondent’s usage from the "Coke" mark in any meaningful way; that this generic addition does create a strong possibility of confusion regarding "source, sponsorship, application, or endorsement of Respondents’ website"; and that the website prominently features a picture of a Coca-Cola can on its home page (see Complaint, Paragraph 12(f)(iv)).
As regards element (2) above, the lack of legitimate rights or interest in the domain name element, Paragraph 12(f) of the Complaint asserts that Respondents have no intellectual property rights in the domain name, and are using the domain name without the consent of Complainant.
As regards element (3) above, the bad faith element, Paragraph 12(f) of the Complaint alleges that Respondents have made no other use of the domain other than to offer it for sale. Complainant further alleges that on or about April 2000, Respondents were offering the domain name for sale on another website, "AfterNIC.com", and that the domain name was removed from sale only after a complaint was sent by Complainant.
6. Discussion and Findings
Based on the facts and contentions referenced above, the Panel finds as follows:
a. As Respondents have not disputed any allegations of fact by Complainant in Section 5 of this Decision, the Panel accepts these allegations as true.
b. Complainant has adequately demonstrated its own intellectual property rights in the trademark "Coke" and other closely affiliated marks containing the word "Coke" in the relevant trademark product/service international classes.
c. As regards proof of element (1) above, the confusion element, the Panel visited Respondent’s website on April 25, 2000, and found the picture of the Coca-Cola can prominently displayed on the website’s home page, with an offer for sale of the domain name "coketrader.com". The Panel finds that the probability of confusion with Complainant’s products, services and activities is very high.
d. As regards proof of element (2) above, the lack of legitimate interest or rights in the domain name, Respondents have failed to assert any such interest or right. Therefore, the Panel finds that Respondents do not have any such interest or right.
e. As regards proof of element (3) above, the bad faith element, the Panel agrees with Complainant that Respondents appear to have no other commercial use for the name other than to offer it for sale to others based on attempts to create confusion with the legitimate Coca-Cola brand. The large picture of the Coca-Cola can on Respondents’ home page helps prove this point.
Paragraph 4(b) of the Policy cites, without limitation, various examples of bad faith. Paragraph 4(b)(iv) of the Policy provides one such example of bad faith by a Respondent:
"(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 web site or location or of a product or service on your web site or location."
The Panel finds that this situation occurs in the present case. While it is often difficult to prove a Respondent’s actual intent, the Panel may clearly infer such intent by the use of the Coca-Cola can on Respondents’ home page. Such intent is also inferred from Respondents’ email address "firstname.lastname@example.org".
Based upon the Panel’s Findings from Section 6 above, and under its authority vested by Paragraph 4(i) of the Policy, the Panel hereby requires the Registrar to transfer the domain name registration to the Complainant.
Paul E. Mason
Dated: April 30, 2001