WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Coca-Cola Company v. Athene Abary
Case No. D2010-1041
1. The Parties
Complainant is The Coca-Cola Company of Atlanta, Georgia, United States of America, represented by Simmons & Simmons, United Kingdom of Great Britain and Northern Ireland.
Respondent is Athene Abary of Fontana, California, United States of America.
2. The Domain Name and Registrar
The disputed domain name <relentlessenergydrink.com> is registered with Wild West Domains, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 25, 2010. On June 25, 2010, the Center transmitted by email to Wild West Domains, Inc. a request for registrar verification in connection with the disputed domain name. On June 25, 2010, Wild West Domains, Inc. 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 Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy (the “Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the “Supplemental Rules”).
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified Respondent of the Complaint, and the proceedings commenced on June 29, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was July 19, 2010. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 20, 2010.
The Center appointed Sandra A. Sellers as the sole panelist in this matter on July 27, 2010. 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 launched Relentless energy drink in February 2006. It also produces a variety of related energy drinks, all of which contain the term “relentless”. Since 2006, Complainant has extensively promoted its Relentless energy drink, through sponsorship of many sports and music festivals, in addition to advertising. In 2009, Relentless energy drink sold, according to AC Nielson data, over GBP 40 million.
Complainant owns trade mark registrations and applications worldwide for the RELENTLESS word mark and RELENTLESS and design.
Complainant is the owner of <relentlessenergy.com>, which was registered on November 28, 2005.
Respondent registered the disputed domain name, <relentlessenergydrink.com>, on April 24, 2010. According to the depictions in Annex 7 of the Complaint, the disputed domain name used to revert to a site that promoted energy drinks other than Relentless, and included links to “www.amazon.com”, through which these other energy drinks could be purchased. In particular, the site contained pictures of and a story about Power Horse energy drinks.
5. Parties’ Contentions
Complainant contends that the disputed domain name is confusingly similar to its registered trade marks. Complainant further contends that Respondent has no rights or legitimate interests in the disputed domain name, and that it was registered and is being used in bad faith. In particular, Complainant alleges that Respondent registered <relentlessenergydrink.com> to attract Internet users by creating a likelihood of confusion with Complainant’s RELENTLESS mark, and to achieve commercial gain by advertising competing energy drinks and by gaining click-through revenue via links to sales of competing energy drinks.
Respondent did not reply to Complainant’s contentions.
6. Discussion and Findings
Paragraph 4(a) of the UDRP provides that in order to divest a respondent of a disputed domain name, a complainant must demonstrate each of the following:
(i) the domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) the respondent has no rights or legitimate interests in respect of the domain name; and
(iii) the domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
Complainant clearly has demonstrated that it has rights in the RELENTLESS mark. Complainant owns trade mark registrations worldwide for the RELENTLESS word mark and RELENTLESS and design marks. Based on its use of RELENTLESS and RELENTLESS ENERGY DRINK, Complainant may also have common law rights in RELENTLESS ENERGY DRINK, although in light of its registered marks, the Panel need not make any assessment on this point.
Complainant also is the owner of <relentlessenergy.com>, which was registered on November 28, 2005.
The disputed domain name <relentlessenergydrink.com> contains Complainant’s full RELENTLESS registered mark. Many previous panels have found it is immaterial that Respondent has added generic terms - here “energy” and “drink” - to the end of Complainant’s registered mark. Furthermore, addition of the words “energy” and “drink” reinforces the association with Complainant’s primary line of products under the RELENTLESS mark - energy drinks - and thus supports a finding that the disputed domain name is confusingly similar. E.g., Caterpillar Inc. v Roam The Planet, Ltd., WIPO Case No. D2000-0275.
The Panel finds that the disputed domain name is confusingly similar to Complainant’s registered mark, and that Complainant meets the first criterion of paragraph 4(a) of the Policy.
B. Rights or Legitimate Interests
Respondent is not affiliated with or related to Complainant, nor is Respondent licensed or authorized to use the RELENTLESS mark. On the evidence before the Panel, Respondent does not appear to make any legitimate noncommercial or fair use of the disputed domain name. The Panel is satisfied that Complainant has made a prima facie showing of Respondent’s lack of rights or legitimate interests in the disputed domain name.
Respondent is in default, and has not provided any evidence in her own favor.
The Panel finds that Respondent does not have any rights or legitimate interests in respect of the disputed domain name and that Complainant meets the second criterion of paragraph 4(a) of the Policy.
C. Registered and Used in Bad Faith
The fame and reputation of a complainant’s mark may be persuasive in determining a respondent’s bad faith intent. Telstra Corporation Limited v. Nuclear Marshmallows, WIPO Case No. D2000-0003. Here, Complainant’s Relentless energy drink was found to be one of the leading energy drinks according to AC Nielson data, with annual sales of more than GBP 40 million.
Complainant produced, promoted and sold its Relentless energy drink for over four years before Respondent registered the disputed domain name. All of Complainant’s RELENTLESS trademark registrations were issued before the disputed domain name was registered. Complainant’s <relentlessenergy.com> domain name was also registered prior to Respondent’s registration of the disputed domain name.
Based on these facts, this Panel infers that Respondent was aware of Complainant’s mark when Respondent registered the disputed domain name. See, e.g., Jupiters Limited v. Aaron Hall, WIPO Case No. D2000-0574, in which the panel found it “inevitable that Respondent registered the domain names in full knowledge of Complainant’s rights and interests”.
The disputed domain name resolved to a website that contained links to purchase through “www.amazon.com” energy drinks that compete with Complainant’s Relentless energy drink. It is now a well-known practice to display on a web page or search engine various links to other commercial websites under a pay-per-click scheme: every link activated by an Internet user enables the host of the search engine to collect financial remuneration proportional to the number of connections. See Deutsche Telekom AG v. WWW Enterprise, Inc., WIPO Case No. D2004-1078. Therefore, in the Panel’s view, it is evident that Respondent has registered and used the disputed domain name with the intent to attract to her website Internet users looking for RELENTLESS energy drinks, thereby making commercial gain from click-through revenue from the sponsored links.
This Panel finds that Respondent has registered and used the disputed domain name in bad faith, within the meaning of paragraph 4(b)(iv) of the Policy and that Complainant meets the third criterion of paragraph 4(a) of the Policy.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <relentlessenergydrink.com> be transferred to Complainant.
Sandra A. Sellers
Dated: August 5, 2010