WIPO Arbitration and Mediation Center
ADMINISTRATIVE PANEL DECISION
The Coca-Cola Company v. Murat Cem Kasim
Case No. D2009-1269
1. The Parties
The Complainant is The Coca-Cola Company of Atlanta, Georgia, United States of America, represented by Valea AB, Sweden.
The Respondent is Murat Cem Kasim of Canakci, Turkey.
2. The Domain Name and Registrar
The disputed domain name <rockncoke.net> (the “Domain Name”) is registered with GoDaddy.com, Inc. (the “Registrar”).
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 24, 2009.
The Center transmitted its request for registrar verification to the Registrar on September 25, 2009. The Registrar replied on September 25, 2009, confirming that it had received a copy of the Complaint; that it was the Registrar and the Respondent was the registrant of the Domain Name; that the Uniform Domain Name Dispute Resolution Policy (the “Policy” or “UDRP”) applied to the Domain Name; that the Domain Name would expire on October 1, 2009, and would remain locked during this proceeding subject to expiry; that the registration agreement was in English; and that the Respondent had been the registrant of the Domain Name since June 18, 2008. The Registrar also provided the full contact details held in respect of the Domain Name on its WhoIs database.
By email to the Registrar of September 28, 2009, the Center noted that the Domain Name was set to expire on October 1, 2009 and asked the Registrar to confirm that it would remain on “Registrar LOCK” status until this proceeding is concluded and to advise whether any action was required by the parties to keep it in this status. The Registrar replied the same day stating that its position was to make the Complainant bear the burden of ensuring that the Domain Name does not expire, but that it took steps to ensure that the Domain Name remains in status quo during the dispute. The Center wrote to the parties by email on September 29, 2009, urging them to contact the Registrar to ensure that the Domain Name remained active so that the proceeding could continue. The Complainant renewed the Domain Name for one year on October 1, 2009.
The Center verified that the Complaint satisfied the formal requirements of the 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 paragraphs 2(a) and 4(a) of the Rules, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on September 29, 2009. The courier confirmed that the notification was delivered to the Respondent at his address according to the contact details in the Registrar's WhoIs database. In accordance with paragraph 5(a) of the Rules, the due date for Response was October 19, 2009. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on October 20, 2009.
The Center appointed Jonathan Turner as the sole panelist in this matter on October 26, 2009. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with paragraph 7 of the Rules.
Having reviewed the file, the Panel is satisfied that the Complaint complied with applicable formal requirements, was duly notified to the Respondent and has been submitted to a properly constituted Panel in accordance with the Policy, the Rules and the Supplemental Rules.
4. Factual Background
The Complainant owns the trademarks COCA-COLA and COKE which it licenses to bottlers around the world for use in relation to the beverages which are bottled, sold and marketed on a very large scale under these marks.
Since 2003 the Complainant has sponsored the largest open-air rock festival in Turkey which has taken place annually at the Hezarfen Airfield under the name “Rock'n Coke”.
The Domain Name was registered on October 1, 2006, by Mr. Dark and directed to a website which provided various downloads and links. The Complainant's representative sent Mr. Dark a cease and desist letter on June 12, 2008, and a reminder on June 18, 2008. Mr. Dark did not reply, but started a forum discussion on the Internet inviting members of the forum to comment on the cease and desist letter and to advise on how to avoid any legal actions by the Complainant.
The Respondent participated in the discussion and invited Mr. Dark to sell him the Domain Name. Mr. Dark agreed to sell the Domain Name to the Respondent for “15 Pepsi” and a share of the proceeds if the Respondent succeeded in selling it to the Complainant. The Domain Name was transferred to the Respondent on June 18, 2008.
The Complainant's representative sent the Respondent a cease and desist letter on August 7, 2008, and a reminder on October 19, 2008. The Respondent did not reply. The Respondent has not used the Domain Name for a website.
5. Parties' Contentions
A. The Complainant
The Complainant states that it has registered and unregistered rights in the mark COKE and that it has unregistered rights in the mark ROCK'N COKE as a result of the use of this mark for the rock festival which it sponsors. The Complainant submits that the Domain Name is confusingly similar to its mark COKE and identical to its mark ROCK'N COKE.
The Complainant contends that the Respondent has no rights or legitimate interests in respect of the Domain Name. It states that the Respondent has not used or made demonstrable preparations to use the Domain Name in connection with any bona fide offering of goods or services or any legitimate noncommercial or fair purpose, that it has not licensed the Respondent to use the Domain Name, and that there is nothing to suggest that the Respondent is commonly known by the Domain Name.
The Complainant further alleges that the Domain Name has been registered and is being used in bad faith. The Complainant notes that the acquisition of a domain name constitutes registration for the purpose of this requirement of the UDRP. The Complainant submits that the Respondent acted in bad faith by knowingly acquiring a domain name which entirely comprises the Complainant's mark and acquiring it primarily for the purpose of selling, renting or otherwise transferring it to the Complainant or a competitor of the Complainant for valuable consideration in excess of his out-of-pocket costs. The Complainant also alleges that by acquiring the Domain Name the Respondent is preventing it from reflecting its ROCK'N COKE mark in a corresponding domain name.
The Complainant requests a decision that the Domain Name be transferred to it.
B. The Respondent
As stated above, the Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
In accordance with paragraph 4(a) of the Policy, in order to succeed in this proceeding, the Complainant must prove (i) that the Domain Name is identical or confusingly similar to a trade or service mark in which it has rights; (ii) that the Respondent has no rights or legitimate interests in respect of the Domain Name; and (iii) that the Domain Name has been registered and is being used in bad faith.
In accordance with paragraph 14(b) of the Rules, the Panel shall draw such inferences from the Respondent's default as it considers appropriate. This includes the acceptance of plausible evidence of the Complainant which has not been disputed.
A. Identical or Confusingly Similar
The Panel finds on the evidence that the Complainant has registered and unregistered rights in the mark COKE and unregistered rights in the mark ROCK'N COKE.
The Panel further finds that the Domain Name is confusingly similar to the mark COKE and identical, for the purpose of the UDRP, to the mark ROCK'N COKE. It is well established that the generic top level domain suffix should be discounted for this purpose and the Panel regards the omission of the apostrophe as immaterial.
The first requirement of the UDRP is satisfied.
B. Rights or Legitimate Interests
The Panel finds on the evidence that the Respondent has not used or made demonstrable preparations to use the Domain Name or any corresponding name for any bona fide offering of goods or services or for any legitimate noncommercial or fair purposes. It is also evident that the Respondent is not commonly known by the Domain Name.
On the evidence, there is no other basis on which the Respondent could claim to have rights or legitimate interests in respect of the Domain Name.
The second requirement of the UDRP is satisfied.
C. Registered and Used in Bad Faith
As the Complainant rightly observes, the registration of the Domain Name on its transfer to the Respondent constitutes registration for the purpose of the third requirement of the UDRP.
The Panel finds on the evidence that the Domain Name was acquired by the Respondent primarily for the purpose of selling it to the Complainant at a profit. In accordance with paragraph 4(b)(i) of the UDRP, this finding constitutes evidence that the Domain Name was registered and is being used in bad faith.
There is no evidence which displaces this presumption. Accordingly the Panel concludes that the Domain Name was registered and is being used in bad faith. The third requirement of the UDRP is satisfied.
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, <rockncoke.net>, be transferred to the Complainant.
Dated: November 6, 2009