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WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Coca-Cola Company v. Masud Osman
Case No. D2001-0618
1. The Parties
Complainant: The Coca-Cola Company is a corporation incorporated under the laws of the State of Delaware having a place of business at One Coca-Cola Plaza N.W., Atlanta, GA 30313, United States of America. Complainant is represented by Bradley A. Slutsky of the Law firm of King & Spalding, 191 Peachtree Street, Atlanta, GA 30303-1763, United States of America.
Respondent: Masud Osman, 380 W Wilson E101, Costa Mesa, CA 92627, United States of America.
2. The Domain Names and Registrar
Domain Names at issue: <winatcoke.com>, <cokecoke.com>, <cokerules.com>.
The Registrar is Network Solutions, 505 Huntmar Park Drive, Herndon, VA 20170, United States of America.
3. Procedural History
On May 2, 2001, Complainant, through counsel, caused a complaint to be filed with the WIPO Arbitration and Mediation Center seeking that the following domain names <winatcoke.com>, <cokecoke.com> and <cokerules.com>, (hereinafter disputed domain names) be transferred to Complainant. The complaint includes various e-mail correspondences between counsel for Complainant and Respondent.
On May 30, 2001, Respondent timely sent a response, via e-mail, to the WIPO Arbitration and Mediation Center.
No further submissions have been considered. The Panel has not found it necessary to request any further information from the parties. The proceedings have been conducted in English.
4. Factual Background
Complainant is the owner of the COKE Trademark and the U.S. Trademark Registration Number 415755 for the mark COKE. The widespread use of the COKE trademark is undisputed. The "Coke" trademark has come to symbolize the goodwill and reputation built by The Coca-Cola Company over many years is widely recognized.
The Complainant also owns, has registered, and uses a domain name that includes the "Coke" trademark <coke.com>.
Respondent owns, has registered, and is using the domain names <winatcoke.com>, <cokecoke.com> and <cokerules.com> for websites allegedly devoted to a marketing concept involving The Coca-Cola Company and its products. All were originally fully accessible to the public. Following communications from counsel for The Coca-Cola Company, Respondent made the websites accessible through a user name and password, which he has been making available to third parties.
The disputed domain names all consist of the entire "Coke" trademark and trade name of Complainant. In one case, CokeCoke.com, Respondent repeated the "Coke" trademark twice. In the other two instances -- <winatcoke.com> and <cokerules.com> -- Respondent added verbiage to the "Coke" trademark.
Respondent’s websites use the Spencerian Script used by Complainant in connection with its logos and its "Coke" and "Coca-Cola" products. Respondent is using The Coca-Cola Company’s famous logo consisting of a red disc bearing a "Coca-Cola" bottle with the trademark "Coca-Cola" on it. Further, all of Respondent’s websites state at the bottom "Copyright © 2000 [now 2001] The Coca Cola [sic] Company All rights reserved," which gives the impression that The Coca-Cola Company is associated with the websites.
5. Parties’ Contentions
A. Complainant contends that the registration and use of the disputed domain names creates a strong likelihood of confusion as to source, sponsorship, application or endorsement of Respondent’s websites by Complainant. Complainant also alleges that Respondent lacks right or legitimate interest in the disputed domain names and the respondent registered and uses the domain names in bad faith.
B. Respondent’s email dated May 30, 2001, is construed as being a denial of Complainant’s contentions. Respondent further contends that the web pages were used as a means to demonstrate Respondent’s marketing ideas to Complainant. Respondent also clearly communicates disdain towards outside counsel for Complainant.
6. Discussion and Findings
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.
Complainant alleges confusing similarity between the mark COKE and the disputed domain names. Respondent fails to dispute this allegation. Respondent also admits that Complainant’s mark was to be used as part of a respondent’s proposed marketing plan. Accordingly, this panel finds that the domain names, by inclusion of the term COKE, achieve confusing similarity to COKE, Complainant’s registered trademark.
Section 4(c ) of the Policy offers guidance as to how Respondent may demonstrate a legitimate interest in respect of the disputed domain names.
"(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;"
Respondent alleges that he was using the domain names to present a proposed marketing plan to Complainant. Complainant refused to adopt or even consider Respondent’s plan. Respondent was never licensed to use Complainant’s mark, or the disputed domain name including Complainant’s mark. Since Respondent was not authorized to use Complainant’s mark there was no legitimate interest of any kind by Respondent.
Paragraph 4(b)(iv) of the policy offers guidance as to when bad faith can be found.
"(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 facts show that Respondent used the COKE mark on various web pages associated with the disputed domain name. The use of Complainant’s mark on these pages, and in the associated disputed domain names, creates a likelihood of confusion with complainant’s mark in violation of paragraph 4(b)(iv). This panel finds bad faith because Respondent’s actions meet the criteria listed in paragraph (4)(b)(iv).
This panelist finds the domain names <winatcoke.com>, <cokecoke.com>, and <cokerules.com> are each confusingly similar to Complainant’s mark COKE.
Respondent has no rights or legitimate interests in respect of the disputed domain names and the disputed domain names have been registered and are being used in bad faith, within the meaning of paragraph 4(a) of the Policy. This Panel orders that the disputed domain names <winatcoke.com>, <cokecoke.com>, and <cokerules.com> be transferred to the Complainant.
Kevin H. Fortin, Esq.
Dated: July 15, 2001