WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Coca-Cola Company v. Andrew Corr
Case No. D2012-0368
1. The Parties
The Complainant is The Coca-Cola Company of Atlanta, Georgia, United States of America, represented by Parks IP Law LLC, United States of America.
The Respondent is Andrew Corr of Cork, Ireland.
2. The Domain Name and Registrar
The disputed domain name <cocacolagiveaway.com> is registered with GoDaddy.com, LLC (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on February 24, 2012. On February 24, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On February 24, 2012, the Registrar transmitted by email to the Center its verification response confirming that the 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 the Respondent of the Complaint, and the proceedings commenced on February 28, 2012. In accordance with the Rules, paragraph 5(a), the due date for Response was March 19, 2012. On February 29, 2012, the Center received an email communication from the Respondent. The Respondent did not submit any formal response. Accordingly, the Center notified the parties of the commencement of the panel appointment process on March 20, 2012. On March 20 and March 22, 2012, the Center received further email communications from the Respondent. On March 21, 2012, the Center received an email communication from the Complainant, responding to Respondent’s earlier email communications.
The Center appointed Torsten Bettinger as the sole panelist in this matter on March 23, 2012. 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.
As indicated, a number of short email replies were received from the Respondent, although no formal Response was filed. In these messages the Respondent indicated that he was a minor (fourteen years old), that he did not understand the nature of the proceedings and that he was apprehensive about telling his parents anything concerning the case.
For the avoidance of doubt, and to give the Respondent an opportunity to fully present his case, the Panel issued a Procedural Order on March 30, 2012. The Procedural Order instructed the Respondent, if he were indeed an underage teenager, to tell his parent or guardian about the proceedings and to give him or her copies of the case-related materials. Further, the Respondent’s guardian (or legal counsel) was invited to supply proof of the Respondent’s age and to explain how the Respondent came to be the registrant of the disputed domain name. The concerned Registrar was also invited to provide any comments it may have had on the matter, as the potential registration of a domain name by a minor through their system might be of concern. Finally, the Complainant was provided with an opportunity to respond to any submissions made by the Respondent or Registrar. The Complainant was further instructed to provide evidence of the illegal and/or phishing activities apparently undertaken at other websites under domain names registered by the Respondent, which the Complainant had alleged in its email communication of March 21, 2012.
No replies were received from either the Respondent or the Registrar in response to the Procedural Order. The Complainant timely filed its submission on April 10, 2012.
4. Factual Background
The Complainant is the owner of the world-famous and highly recognized COCA-COLA trademark, which was first registered in the United States during the late 1800s. The Complainant states that it is the largest beverage company in the world, and that more that 1.7 billion servings of its products are consumed worldwide on a daily basis.
The disputed domain name was registered by the Respondent on February 15, 2012, and was used in connection with a phishing “survey scam” through the popular social networking site “www.facebook.com” (“Facebook”). The Complainant provided documentation of the scam, its mechanism, and media coverage intended to prevent Internet users from becoming victims after the discovery of the scheme. The disputed domain name currently resolves to a landing page which reads “Sorry! This site is not currently available”.
5. Parties’ Contentions
The Complainant asserts that each of the elements specified in paragraph 4(a) of the Policy has been satisfied.
With regard to the first element, under paragraph 4(a)(i) of the Policy, the Complainant states that the disputed domain name fully includes the Complainant’s registered COCA-COLA trademark, minus the hyphen between the words, and is used in conjunction with the dictionary word “giveaway”.
Concerning the second element, of paragraph 4(a)(ii) of the Policy, the Complainant alleges that the Respondent has used the disputed domain name in connection with a “survey scam” through Facebook. According to the documents and evidence provided by the Complainant, the scam was carried out in the following manner. The Respondent created a fictitious “event” called the “Coca Cola Giveaway (24 Pack Limited Offer)”, claiming the event was a promotional give-away by the Complainant. The Respondent then sent fraudulent “invitations” to a large number of Facebook users (the Complainant states that nearly 23,000 users were contacted). After clicking on the event link, the users were promised prizes for completing surveys. Clicking on the survey links directed users to the website at the disputed domain name, which displayed a page nearly identical to the Complainant’s website at “www.cokezone.co.uk”. Additionally, clicking on certain survey links caused malicious software to be downloaded to the users’ computers, requesting personal information and passwords in order to “claim” an offer of free Coca-Cola products.
The Complainant further alleges that the Respondent is not making any legitimate noncommercial or fair use of the disputed domain name, that he is not a licensee of the Complainant or otherwise authorized to use the COCA-COLA mark, that he has not used the disputed domain name in connection with a bona fide offering of goods or services, and that he is not commonly known by the disputed domain name or a name corresponding to the disputed domain name.
With regard to the third element of paragraph 4(a)(iii) of the Policy, the Complainant alleges that the Respondent registered and used the disputed domain name in bad faith. The Complainant notes the strong similarity between the Respondent’s website active at the disputed domain name and the Complainant’s website at “www.cokezone.co.uk”, and submits this as evidence of the Respondent’s intent to target the mark. The Complainant further states that the Respondent’s actions are clearly disruptive to the Complainant’s business activities, and that the Respondent has been unjustly enriched through his malfeasance.
In the Complainant’s supplemental submission, filed in response to the Panel’s Procedural Order, the Complainant provided evidence of the Respondent’s registration of numerous additional domain names containing famous third-party trademarks and/or the personal names of celebrities. Several of the websites at these additional domain names appear to have been used in connection with similar “survey scam” activities, as documented in the Complainant’s supplementary Annexes.
The Respondent did not formally reply to the Complainant’s contentions. As discussed above under the Procedural History section, a number of brief emails were received from the Respondent but no substantive reply has been entered, either with regard to the allegations of the Complaint or the Panel’s Procedural Order.
The only statements the Respondent made in defense of his actions were a series of emails indicating that he was an underage minor. As explained above, the Panel issued a Procedural Order to provide the Respondent with an opportunity to elaborate on his claims. As no reply was received to the Procedural Order, and no additional information has been forthcoming from the Respondent, the Panel will proceed in this matter accordingly.
6. Discussion and Findings
A. Identical or Confusingly Similar
The test of identity or confusing similarity under the Policy is confined to a comparison of the disputed domain name and the trademark alone, independent of the products for which the domain name is used or other marketing and use factors usually considered in trademark infringement. See F. Hoffmann-La Roche AG v. P Martin, WIPO Case No. D2009-0323; and BWT Brands, Inc and British American Tobacco (Brands), Inc v. NABR, WIPO Case No. D2001-1480.
Additionally, it is well established that a generic Top Level Domain suffix, such as “.com”, is generally held to be irrelevant for the purposes of determining identity or confusing similarity under the Policy. See Rollerblade, Inc. v. Chris McCrady, WIPO Case No. D2000-0429.
The Complainant has clearly demonstrated its rights in the COCA-COLA trademark by virtue of its numerous registrations, many of which date back to before the turn of the last century. The Complainant also provided evidence of its registrations in Ireland, the location of the Respondent’s WhoIs-listed address, dating from 1922.
The disputed domain name <cocacolagiveaway.com> contains the entirety of the Complainant’s mark, minus the hyphen between the words, and combined with the dictionary term “giveaway”. The addition of a dictionary word or term which is descriptive of a complainant’s goods or services will not generally serve to distinguish a respondent’s domain name from the relevant trademark. See Revlon Consumer Products Corporation v. Vladimir Sangco, WIPO Case No. D2010-1774; Viacom International Inc. v. Transure Enterprise Ltd., WIPO Case No. D2009-1616; and Ansell Healthcare Products Inc. v. Australian Therapeutics Supplies Pty, Ltd., WIPO Case No. D2001-0110.
Accordingly, the Panel finds that the disputed domain name is confusingly similar to the Complainant’s COCA-COLA trademark, and that the Complainant has established the requirement of paragraph 4(a)(i) of the Policy.
B. Rights or Legitimate Interests
Paragraph 4(a)(ii) of the Policy requires the Complainant to prove that the Respondent has no rights or legitimate interests in the disputed domain name. It is, however, the consensus view among WIPO UDRP panelists that if the complainant makes a prima facie case that the respondent has no rights or legitimate interests, and the respondent fails to show one of the three circumstances under paragraph 4(c) of the Policy, then the respondent may lack rights or legitimate interests in the domain name. See Belupo d.d. v. WACHEM d.o.o., WIPO Case No. D2004-0110.
In this case, the Complainant has made a prima facie showing that the Respondent lacks rights or legitimate interests in the disputed domain name. The Complainant confirms that it has not licensed or authorized the Respondent to use its COCA-COLA mark in any fashion and that there is no connection between the parties. There is no evidence on the present record, or in the publicly-available WhoIs records, to indicate that the Respondent is commonly known by the disputed domain name or a name corresponding to the disputed domain name. Additionally, it would appear that the Respondent has used the disputed domain name in connection with a “survey scam” and phishing scheme, in order to gain access to unsuspecting Internet users’ personal information. Such use of the disputed domain name neither constitutes a bona fide offering of goods or services nor a legitimate noncommercial or fair use.
Under these circumstances, the Panel takes the view that the Respondent has no rights or legitimate interests in the disputed domain name and that the requirement of paragraph 4(a)(ii) is also satisfied.
C. Registered and Used in Bad Faith
The Complainant has clearly demonstrated that its COCA-COLA mark is widely recognized and that said mark was registered for a substantial period of time prior to the creation of the disputed domain name. Additionally, the Respondent’s copying of the look, feel and layout of the Complainant’s website at “www.cokezone.co.uk” indicates to the Panel that the Respondent was fully aware of the Complainant and its trademarks when registering the disputed domain name.
The Respondent has used the disputed domain name in connection with a phishing scheme, which is designed to provide the Respondent with access to the personal information and log-in credentials of unsuspecting Internet users. Such data, in the Panel’s view, would most likely be used by the Respondent to realize unwarranted commercial gain. In keeping with numerous prior UDRP decisions, the Panel finds that such actions constitute bad faith use under paragraph 4(b)(iv) of the Policy. See, inter alia, Banco Bradesco S.A. v. Marciano Martins, WIPO Case No. D2010-0201; EFG Bank European Financial Group SA v. Domain Consults, WIPO Case No. D2011-1907; Citibank Privatkunden AG & Co. KGaA v. PrivacyProtect.org / N/A, indish india mr.ugala, WIPO Case No. D2010-1147; Total S.A. v. Gustavo Cerda, WIPO Case No. D2011-2073; Revlon Consumer Products Corporation v. PrivacyProtect.org / Timmy Smith, WIPO Case No. D2011-2139; Starwood Hotels & Resorts Worldwide, Inc., Sheraton LLC, Sheraton International Inc. v. Isaac Isaac, WIPO Case No. D2011-1275; and Banco Bradesco S.A. v. Fernando Camacho Bohm, WIPO Case No. D2010-1552.
The Panel therefore concludes that the requirements of paragraph 4(a)(iii) of the Policy have also been met.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <cocacolagiveaway.com> be transferred to the Complainant.
Dated: April 12, 2012