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WIPO Arbitration and Mediation Center

 

ADMINISTRATIVE PANEL DECISION

The Coca-Cola Company v. Gamlebyen Invest AS

Case No. D2000-1677

 

1. The Parties

The complainant is The Coca-Cola Company, a corporation incorporated under the laws of the State of Delaware with its principal place of business in Atlanta, Georgia, United States of America.

The Respondent is Gamlebyen Invest AS whose address details are Schweigaardsgt.53, Oslo 0191, Norway.

 

2. The Domain Name and Registrar

This dispute concerns the domain name identified below:

<cocacoladrinks.com>

The registrar with which the domain name is registered is: EASYSPACE LTD. International Administration Center, Rosemount House, Rosemount Avenue, West Byfleet, Surrey KT14 6LB, United Kingdom.

 

3. Procedural History

A complaint pursuant to the Uniform Domain Name Dispute Resolution Policy ("the policy") and the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") both of which are implemented by ICANN on October 24, 1999 was received by the Center in electronic format on December 1, 2000 and in hardcopy on December 4, 2000. Payment in the required amount to the Center has been made by the Complainant.

On December 7, 2000, a request for registrar verification was sent to the Registrar requesting confirmation that it had received a copy of the complaint from the Complainant, that the domain name was currently registered with it and that the policy was in effect, and requesting full details of the holder of the domain name and advice as to the current status of the domain name.

On January 2, 2001, a formal response was received from the Respondent. It could not be opened so the e-mail was resent on January 5, 2000 and January 9, 2001 to the WIPO Arbitration and Mediation Center. On January 10, 2001 an acknowledgement of receipt of response was sent by the Center to the Respondent.

On January 29, 2001, a notification of appointment of administrative panel and projected decision date ("the appointment notification") was sent to the Complainant and the Respondent. In accordance with the Complainant’s request, the appointment notification informed the parties that the administrative panel would be comprised of a single panelist, Clive Elliott, and advised that the decision should be forwarded to WIPO by February 11, 2001.

 

4. Factual Background

The domain name at issue consists of the entire "CocaCola" trade mark and trade name of the Complainant with the word "drinks" attached.

The trade mark "CocaCola" is widely recognized as being famous.

Mr. Eugene McGlynn, wrote to The Coca-Cola Company on or about May 27, 2000, using the e-mail address of EMG@Dreamcast.no, identifying himself as the registrant of the domain name.

Mr. McGlynn is the registrant of the domain name <Dreamcast.no> and operates a website at http://Dreamcast.no. The www.CocaColaDrinks.com website is redirected to the http://Dreamcast.no website. Until the end of October 2000, the http://Dreamcast.no site and the site operated at www.CocaColaDrinks.com were separate, although their content was identical. As of early November 2000, www.CocaColaDrinks.com redirects automatically to http://Dreamcast.no.

Gamlebyen Invest AS is the registrant of the domain name and Mr. McGlynn has responded in this administrative proceeding. A second e-mail message sent by Mr. McGlynn has a signature that identifies Mr. McGlynn as affiliated with Gamlebyen Invest.

A large number of the Complainant’s "Coca-Cola" marks are registered with government authorities in the United States and other countries around the world, including Norway (where the Respondent is located).

The Respondent is using the domain name without the consent or approval of The Coca-Cola Company.

 

5. Parties’ Contentions

The Complainant alleges the following:

The Complainant states that the Respondent’s first e-mail message to The Coca-Cola Company makes it clear that Respondent was aware of The Coca-Cola Company’s trademark rights and registered the domain name to capitalize on those rights.

The Complainant states the content on Respondent’s website is unrelated to the "Coca-Cola" trademark or The Coca-Cola Company.

The Complainant claims during the fiscal year ending in September 2000, The Coca-Cola Company spent in excess of 300 million U.S. dollars to advertise and promote the "Coca-Cola" trademark in connection with its products and services for the United States and Europe (including Norway), and The Coca-Cola Company sold hundreds of millions of cases of its products under and in connection with the "Coca-Cola" trademark throughout the United States and Europe (including Norway).

The Coca-Cola Company’s long use, widespread advertising and enormous sales, of the "Coca-Cola" trademark has come to symbolize the goodwill and reputation built by The Coca-Cola Company over many years, is widely recognized as being among the most famous trademarks in the world (including Norway),

The Complainant claims that the Respondent owns, has registered, and, at least until the end of October 2000, used the domain name at www.CocaColaDrinks.com for a website. This site at http://Dreamcast.no promotes an "Irish and sports bar" (e.g., it displays scores of football and rugby games) located in Oslo, Norway, contains advertisements for numerous third-party websites, and links to one or more gambling establishments.

The Complainant says that the similarity between the Respondent’s <CocaColaDrinks.com> domain name, The Coca-Cola Company’s trademark "Coca-Cola," and The Coca-Cola Company’s domain name <CocaCola.com>, Respondent’s registration and use of the domain name creates a strong likelihood of confusion as to source, sponsorship, application, or endorsement of the Respondent’s website by The Coca-Cola Company.

The Complainant alleges the Respondent’s true purpose in registering the domain name is to profit from the goodwill associated with the "Coca-Cola" mark and the Respondent was clearly aware of the "Coca-Cola" trademark and sought to use it for its own gain, which is further evidence of their bad faith.

Respondent alleges the following:

The Respondent claims that this is a clear case of the Complainant feeling stupid and sorry for itself and of reverse name hijacking. It also suggests that the proceedings are unfair and unworthy of WIPO. Other allegations are made, but do not deserve repetition.

The Respondent argues that it is unimportant as to how much The Coca-Cola Company spends or earns.

The Respondentclaims that there is nothing confusingly similar between the trademark "Coca-Cola" and cocacoladrinks. That is, as the registered Coca-Cola name has a dash (-), such dash indicating a separate word.

The Respondent alleges that before this address was registered it was checked with www.nameprotect.com. It is said that "cocacoladrinks" did not come up as a registered trademark.

The Respondent claims that Coca-Cola Limited themselves stated in their complaint that its site bears absolutely no resemblance to them or their products and that this should count against their allegation of likelihood of confusion and bad faith.

 

6. Discussion and Findings

Paragraph 4(a) of the Policy requires that the complainant must prove each of the following:

1. the domain name is identical or confusingly similar to the trade mark; and
2. the respondent has no right or legitimate interest in respect of the domain name; and
3. the domain name has been registered and is being used in bad faith.

Paragraph 4(b) of the Policy sets out four illustrative circumstances that, if proved, constitute evidence of bad faith as required by paragraph 4(a)(iii) referred to above.

Paragraph 4(c) of the Policy sets out three illustrative circumstances that, if proved, constitute evidence of a right or legitimate interest as described in paragraph 4(a)(ii) referred to above.

Domain Name Identical to or Confusing Similar

It is common knowledge that Coca-Cola is one of the world’s most famous trade marks. Such fame and recognition applies whether the trade mark is rendered with or without a dash. On the same token, it would be reasonable to assume that Coca-Cola and "cocacoladrinks" are somehow connected or associated and there is an association with the Coca-Cola organisation based in the USA.

The Respondent’s argument that Coca-Cola and "cocacoladrinks" are different and not confusingly similar is a difficult one to accept. That is, particularly so given the obvious connection between Coca-Cola and the manufacture and sale of soft drinks.

No Right or Legitimate Interest

While the Respondent’s response was short on facts, in an email sent by Mr. McGlynn and dated January 1, 2001, the allegation was made that Mr. McGlynn had been invited by a Coca-Cola Norwegian employee, Bente Hansen, who suggested that Mr. McGlynn should send her company an email and "and may be we’ll buy it from you".

The Complainant submitted that this email should not be considered by the panel as it falls outside the response. Nevertheless, out of an abundance of caution, an affidavit was filed from Ms. Hansen stating that she does and did not work for the Coca-Cola company nor its Norwegian subsidiary and denying having had such (or any other) conversation about domain names with Mr. McGlynn. This evidence was verified by a further affidavit.

In view of this categorical denial under oath, it is difficult to give much credence to Mr. McGlynn’s unsworn allegations of his contact with Ms. Hansen.

Accordingly, it is found that the Respondent had no right or legitimate interest in respect of the domain name.

Domain Name Registered and Being Used in Bad Faith

The Respondent first wrote to Mr. Kevin Treanor of The Coca-Cola Company on or about May 27, 2000 stating, inter alia,:

"As a customer of CCD in Norway, I thought that one day Coca Cola [sic] Drinks will use that domain as an international ordering site for retailers. So I registered it. It is a fantastic domain and should do very well in the Internet auctions, but if you are interested in making an offer for the domain name www.cocacoladrinks.com [sic] If so please contact me with an offer. I will in a few weeks put the url up for auction on Ebay or Yahoo, you can also bid for it there shoud [sic] you not wish to make me an offer".

This suggests intent to sell the domain name back to the complainant or companies associated with it and failing such purchase to sell the domain name for commercial gain, to an unrelated entity. Given the repute of the Coca-Cola name and trade mark, the lack of credible evidence as to any right to use or deal in the domain name and the tenor of this communication, bad faith registration and use is found to exist.

 

7. Decision

In view of the above, the domain name should be transferred to the Complainant.

 

 

Clive Eliott
Sole Panelist

Dated: February 14, 2001