WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Coca-Cola Company v. David Jurkiewicz
Case No. DME2010-0008
1. The Parties
The Complainant is The Coca-Cola Company of Atlanta, Georgia, United States of America, represented by Arnall Golden Gregory LLP, United States of America.
The Respondent is David Jurkiewicz of Malmo, Sweden.
2. The Domain Name And Registrar
The disputed domain name <cocacola.me> (the Domain Name) is registered with Name.com LLC.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 19, 2010. On October 20, 2010, the Center transmitted by email to Name.com LLC. a request for registrar verification in connection with the Domain Name. On October 21, 2010, Name.com LLC. transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the Domain Name. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy, approved by the doMEn d.o.o (“doMEn”) (the “Policy” or “UDRP”), the Rules for Uniform Domain Name Dispute Resolution Policy approved by the doMEn d.o.o (“doMEn”)(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 November 4, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was November 24, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 25, 2010.
The Center appointed Warwick Smith as the sole panelist in this matter on November 30, 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.
In the absence of any Response, the Panel has checked the record to ensure that the Respondent received proper notice of the Complaint, as required by the Rules. The Panel is satisfied that notification was properly effected in accordance with the Rules.
4. Factual Background
The Complainant is one of the world’s largest beverage companies, serving more than 1.6 billion consumers in over 200 countries every day. It has been selling its beverages in the United States and internationally under the mark COCA-COLA, since 1887.
The Complainant’s COCA-COLA mark is registered in numerous jurisdictions around the world, including Sweden. In addition, the Complainant owns numerous domain names, including <cocacola.com> and <coca-cola.me>.
The Respondent and the Domain Name
The Domain Name was registered on August 4, 2008. According to the Complaint, it has resolved to the website at “www.pepsi.com”, being a website operated by the Complainant’s biggest competitor. At the time the Complaint was filed, the Domain Name had been re-directed to the website at “www.vuumo.com”. The Complainant did not produce copies of the websites to which the Domain Name has resolved.
When the Panel keyed the Domain Name into his browser on December 2, 2010, he was unable to access any website.
The Respondent has not been authorized to use the Complainant’s COCA-COLA mark (or any expression confusingly similar thereto).
Pre-Commencement Correspondence between the Parties
The Complainant’s counsel sent a “cease and desist” letter to the Respondent on December 4, 2009. On December 7, 2009 the Respondent replied, offering to re-direct the Domain Name “to something else”.
On December 10, 2009, the Respondent sent an email to the Complainant’s counsel enquiring if the Complainant would like to buy the Domain Name. On January 26, 2010 the Complainant’s representative replied, advising that in exchange for a transfer of the Domain Name, the Complainant would be willing to reimburse the Respondent with his registration fees paid in connection with the Domain Name.
The Respondent accepted that proposal by email dated February 10, 2010, and on February 15, 2010 advised that “[EUR] 1100 is the fee that have cost me in total for Coca Cola.me”
According to the Complaint, the yearly fee charged by the previous registrar of the Domain Name for a domain name in the “.me” space, is USD 54. The Complainant was unable to locate a corresponding figure on the website of the current registrar.
5. Parties’ Contentions
The Complainant contends:
1. That Domain Name is virtually identical to the Complainant’s COCA-COLA mark.
2. The respondent has no rights or legitimate interests in respect of the Domain Name, having regard to the following:
(i) The Complainant’s COCA-COLA mark is uniquely associated with it, and cannot be legitimately used by any other individual or entity.
(ii) The Respondent is not known or identified by the name “COCA-COLA”, nor is he affiliated or connected in any way with the Complainant’s business. The Respondent is not licensed or otherwise authorised by the Complainant to use its COCA-COLA mark, or to use any domain name incorporating such mark.
(iii) The Respondent has not acquired any relevant trademark or service mark rights.
(iv) The Respondent has used the Domain Name to attract Internet users seeking the Complainant’s products and services, to other websites to which the Domain Name has resolved, including the websites at “www.pepsi.com” and “www.vuumo.com”.
3. The Domain Name was registered and is being used in bad faith. The Complainant contends:
(i) The Respondent does not conduct any legitimate commercial or non-commercial business under the COCA-COLA mark, or any similar mark.
(ii) The Respondent registered and has used the Domain Name with full knowledge of the Complainant’s rights in its COCA-COLA mark.
(iii) The Respondent registered the Domain Name to prevent the Complainant from using its mark in the corresponding domain name.
(iv) By registering the Domain Name, the Respondent is diverting consumers away from the Complainant’s websites, making it difficult for the Complainant’s customers to locate any future website established by the Complainant, and thereby disrupting the Complainant’s business.
(v) By using the Domain Name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to a website at the Domain Name, by creating a likelihood of confusion with the Complainant’s COCA-COLA mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website, and of the products and services advertised on that website. The Respondent has been unjustly enriched by misappropriating the Complainant’s goodwill and creating a likelihood of confusion with the Complainant’s COCA-COLA mark.
The Respondent did not reply to the Complainant’s contentions.
6. DISCUSSION AND FINDINGS
A. What the Complainant must prove under the Policy - General
Under Paragraph 4(a) of the Policy, a complainant has the burden of proving the following:
(i) That the disputed domain name is identical or confusingly similar to a trademark or service mark in which the complainant has rights; and
(ii) That the respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) That the disputed domain name has been registered and is being used in bad faith.
Paragraph 15(a) of the Rules requires the panel to:
“decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any Rules and principles of law that it deems applicable”.
Where a respondent has not submitted a response, paragraph 5(e) of the Rules requires the Panel to “decide the dispute based on the complaint”. Under paragraph 14(b) of the Rules, the Panel may draw such inferences from a respondent’s failure to comply with the Rules (e.g. by failing to file a response), as the Panel considers appropriate.
B. Identical or Confusingly Similar
The Complainant has proved this part of the Complaint. The Domain Name is almost identical to the Complainant’s COCA-COLA mark. The only difference is the absence of a hyphen in the Domain Name, and that is an insignificant difference. The “.me” suffix is not taken into account in the comparison.
C. Rights or Legitimate Interests
Paragraph 4(c) of the Policy sets out a number of circumstances which, without limitation, may be effective for a respondent to demonstrate that it has rights to, or legitimate interests in, a disputed domain name, for the purposes of paragraph 4(a)(ii) of the Policy. Those circumstances are:
(i) Before any notice to [the respondent] of the dispute, use by [the respondent] of, or demonstrable preparations to use, the disputed domain name or a name corresponding to the disputed domain name in connection with a bona fide offering of goods or services; or
(ii) Where [the respondent] (as an individual, business, or other organization) [has] been commonly known by the disputed domain name, even if [the respondent has] acquired no trade mark or service mark rights; or
(iii) Where [the respondent is] making a legitimate non-commercial or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or to tarnish the trade mark or service mark at issue.
The consensus view of WIPO panels on the onus of proof under paragraph 4(a)(ii) of the Policy, is summarized at paragraph 2.1 of the Center’s online document “WIPO Overview of WIPO Panel Views on Selected UDRP Questions”, as follows:
“A Complainant is required to make out a prima facie case that the respondent lacks rights or legitimate interests. Once such prima facie case is made, respondent carries the burden of demonstrating rights or legitimate interests in the domain name. If the respondent fails to do so, a complainant is deemed to have satisfied paragraph 4(a)(ii) of the UDRP”.
In this case, the Domain Name is almost identical to the Complainant’s world famous COCA-COLA mark. The fame of that mark is such that the Respondent could not have been unaware of it, and it is extremely difficult to imagine any bona fide use to which the Respondent might put the Domain Name in the absence of appropriate consent from the Complainant. No such consent has been given. Nor is there anything in the record to suggest that the Respondent is commonly known by the Domain Name. There is therefore no basis for any right or legitimate interest under paragraph 4(c)(ii) of the Policy.
Those matters in combination are sufficient to establish a prima facie case under paragraph 4(a)(ii) of the Policy, so that the evidentiary burden shifts to the Respondent. The Respondent not having filed any Response, that burden has not been discharged. The Complainant therefore also succeeds on this part of the Complaint.
D. Registered and Used in Bad Faith
Paragraph 4(b) of the Policy lists a number of circumstances which, without limitation, are deemed to be evidence of the registration and use of a domain name in bad faith. Those circumstances are:
(i) circumstances indicating that [a respondent has] registered or acquired the disputed domain name primarily for the purpose of selling, renting, or otherwise transferring the disputed domain name to the complainant or to a competitor of the complainant, for valuable consideration in excess of [the respondent’s] documented out-of-pocket costs directly related to the disputed domain name; or
(ii) [the respondent has] registered the disputed domain name in order to prevent the complainant from reflecting the complainant’s trade mark or service mark in a corresponding domain name, provided that [the respondent has] engaged in a pattern of such conduct; or
(iii) the respondent has registered the disputed domain name primarily for the purpose of disrupting the business of a competitor; or
(iv) by using the disputed domain name, [the respondent has] intentionally attempted to attract, for commercial gain, Internet users to [the respondent’s] website or other online location, by creating a likelihood of confusion with the complainant’s mark as to the source, sponsorship, affiliation, or endorsement of [the respondent’s] website or location or of a product or service on [the respondent’s] website or location.
In the absence of any response to the Complaint, the obvious inference is that the Respondent must have registered the Domain Name in bad faith. The Complainant’s COCA-COLA mark is one of the most famous trademarks in the world, and it is inconceivable that the Respondent could have been unaware of it when he registered the Domain Name. “COCA-COLA” is also a sufficiently distinctive expression that any registration of a domain name substantially similar to it immediately suggests opportunistic bad faith on the part of the registrant, of the kind discussed in cases such as Parfums Christian Dior v. Javier Garcia Quintas and Christiandior.net, WIPO Case No. D2000-0226 (where a domain name is “so obviously connected with such a well-known name and products […] its very use by someone with no connection with the products suggests opportunistic bad faith”), and Veuve Clicquot, Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co., WIPO Case No. D2000-0163.
If that were not enough, the Respondent has also pointed the Domain Name to the website operated by the Complainant’s major competitor.
The correspondence which passed between the Complainant’s representative and the Respondent before the proceeding was commenced, puts the bad faith registration and use issue beyond doubt. The Respondent did not assert in these email exchanges that he had a right or interest in respect of the Domain Name, but almost immediately offered to sell it to the Complainant.
In the absence of any Response, the Panel considers that the proper inference to be drawn from the foregoing facts is that the Respondent registered the Domain Name primarily for the purpose of selling the Domain Name to the Complainant, for valuable consideration in excess of the Respondent’s documented out-of-pocket costs directly related to the Domain Name. There is no evidence of what the Respondent’s costs directly related to the Domain Name have been, but the Complainant has produced evidence that the annual cost of maintaining a domain name in the “.me” domain space has fairly recently been only USD 54, so it seems highly improbable that the Respondent’s out-of-pocket costs directly related to the Domain Name could have been as high as the figure of EUR 1,100 claimed by the Respondent in his February 15, 2010 email. In the Panel’s view, the Complainant has sufficiently proved circumstances falling within the category of bad faith registration and use described at paragraph 4(b)(i) of the Policy.
The Complainant therefore succeeds on this part of the Complaint, and is entitled to an order transferring the Domain Name to it.
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, <cocacola.me>, be transferred to the Complainant.
Dated: December 3, 2010