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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

August Stock KG v. Caribbean Online International Ltd.

Case No. D2007-0772

 

1. The Parties

Complainant is August Stock KG, Berlin, Germany, represented by Tim Reher, Germany.

Respondent is Caribbean Online International Ltd., Kings Court, Nassau, Bahamas.

2. The Domain Name and Registrar

The disputed domain name <toffife.com> is registered with Capitoldomains, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on May 25, 2007. On May 30, 007, the Center transmitted by email to Capitoldomains, LLC a request for registrar verification in connection with the domain name at issue. On June 12, 2007, Capitoldomains, LLC transmitted by email to the Center its response informing that respondent originally specified in the Complaint was not the registrant of the disputed domain name. In the same e-mail Capitoldomains, LLC also informed that the registrant of the disputed domain name was Caribbean Online International Ltd. In response to a notification by the Center that the Complaint was administratively deficient, Complainant filed an amendment to the Complaint on June 26, 2007. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 July 4, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July, 24, 2007. Respondent did not submit any response. Accordingly, the Center notified Respondent’s default on July 31, 2007.

The Center appointed Peter G. Nitter as the sole panelist in this matter on August 8, 2007. 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 is the parent company of the Storck-group which produces and distributes sweets and candy. Complainant has its principal place of business in Germany.

One of Complainant’s products is distributed under the name “Toffifee”.

Complainant has registered the trademark TOFFIFEE in 77 countries worldwide, including two trademark registrations in Germany with priority from May 7, 1971, and February 1, 2000, one trademark registration with the Office for Harmonization in the European Market with priority from May 27, 2004, and one international trademark registration with WIPO with priority from March 17, 1972. These trademarks are all registered for confectionery, pastry, chocolate and chocolate goods.

The disputed domain name <toffife.com> was registered on January 24, 2007.

 

5. Parties’ Contentions

A. Complainant

Complainant is of the opinion that the contested domain name is confusingly similar to the TOFFIFEE trademark.

According to Complainant, <toffife.com> constitutes a misspelling of the TOFFIFEE mark, the only difference being the lack of the second “e”.

Complainant also asserts that the phonetic similarity between the TOFFIFEE trademark and the disputed domain name further heightens the confusing similarity between the domain name and Complainant’s trademark.

Complainant further holds that Respondent has no rights or legitimate interests in the contested domain name.

According to Complainant, Respondent is neither commonly known by the disputed domain name nor is it making a legitimate non-commercial use of the domain name.

Complainant is of the opinion that Respondent has registered and is using the disputed domain name in bad faith.

According to Complainant the trademark TOFFIFEE has a strong reputation and is widely known, especially in the German speaking countries. Complainant argues that Respondent has registered the contested domain name in order to attract Internet users to Respondent’s website to achieve commercial gain by creating a likelihood of confusion with Complainant’s trademark.

Complainant further asserts that Respondent’s frequent practice of registering domain names that are confusingly similar to other parties’ trademarks, as shown from several previous UDRP-decisions, also demonstrates bad faith registration.

According to Complainant’s assertions, Respondent is using the disputed domain name in bad faith by using typosquatting to misdirect Internet traffic. Complainant holds that Respondent is using the disputed domain name to provide sponsored links related to products similar to the products produced and distributed by Complainant under the trademark TOFFIFEE. Further Complainant asserts that a commonly used abbreviation of the company name of Complainant, “Storck”, is used several times on the website connected to the disputed domain name.

B. Respondent

Respondent did not reply to Complainant’s contentions.

 

6. Discussion and Findings

A. Identical or Confusingly Similar

The domain name at issue is not identical to Complainant’s trademark, and the question is therefore whether there is a confusing similarity between the disputed domain name and Complainant’s trademark.

Previous Panel decisions under the UDRP have concluded that the generic top level domain denominator is irrelevant when determining whether a disputed domain name is confusingly similar to a protected trademark. Thus, the first issue only concerns the part of the disputed domain name which consists of “toffife”.

The only difference between the contested domain name and the TOFFIFEE mark is the lack of the second “e” in the domain name. The Panel considers this difference as minor.

The Panel finds that the domain name and the trademark both visually and phonetically will appear as similar and that this leads the domain name at issue to be confusingly similar to Complainant’s trademark.

B. Rights or Legitimate Interests

Respondent does not, according to Complainant, have any rights or legitimate interests in the disputed domain name, and is not commonly known by the marks.

Respondent has not filed any Response arguing that it has rights to, or legitimate interests in, the disputed domain name. None of Complainant’s assertions have thus been contested by Respondent.

In the event that any such rights, connections or affiliations existed, it would generally be relatively easy for a respondent to substantiate this, while it is generally difficult for a complainant to prove the negative that Respondent has no such rights. For this reason, previous decisions under the UDRP have, in the event of a respondent’s default, found it sufficient for a complainant to make a prima facie showing of its assertion pursuant to paragraph 4(c) of the Policy.

The Panel finds that the circumstances mentioned and evidenced by Complainant are sufficient to establish a prima facie showing that Respondent has no rights or legitimate interests in the domain name at issue.

As Respondent has not rebutted this by demonstrating any of the circumstances that constitute rights to, or legitimate interests in, the disputed domain name pursuant to paragraph 4(a)(ii) of the Policy, the Panel concludes that Respondent does not have any rights or legitimate interests in respect of the domain name at issue.

C. Registered and Used in Bad Faith

Based on the evidence presented to it, the Panel finds that Respondent has engaged in a pattern of registering domain names that infringe trademarks of third parties. Cf. New Chapter Inc. v. Caribbean Online International Ltd, WIPO Case No. D2006-1251, HBH, Limited Partnership v. Caribbean Online International Ltd, WIPO Case No. D2006-1454 and Credit Industriel et Commercial en abrйgй CIC v. Caribbean Online International Ltd., WIPO Case No. D2007-0423 . In each of these cases Respondent has been found to have registered the disputed domain names at issue in these cases in bad faith.

According to UDRP practice such a pattern of registration is evidence of bad faith registration. See e.g. Doctor. Ing.h.c. F. Porsche AG v. Stoneybrook Inv. Ltd., WIPO Case No. D2001-1095.

Considering the widespread use and fame of Complainant’s trademarks, as evidenced by Complainant, the Panel further finds it highly unlikely that Respondent, at the time of registration, was not familiar with the trademark TOFFIFEE.

The Panel therefore finds that the disputed domain name was registered in bad faith.

Complainant has asserted that Respondent is using the confusing similarity between the TOFFIFEE trademark and the disputed domain name to attract Internet users to Respondent’s website for commercial gain.

By not submitting a Response, Respondent has failed to invoke any circumstances that could demonstrate that it did not register and use the domain name at issue in bad faith.

Based on the evidence provided, the Panel finds that the website connected to the disputed domain name provides links to websites offering similar goods as those offered by Complainant, and that the website in several places refers to the abbreviation of Complainant’s company name; “Storck”.

On this background the Panel finds that Respondent has used the disputed domain name for the purpose of intentionally attempting to attract users to its website for financial gain by creating a likelihood of confusion with Complainant’s mark.

Thus, the Panel finds that Respondent has registered and used the disputed domain name in bad faith.

7. Decision

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, <toffife.com>, be cancelled.

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Peter G. Nitter
Sole Panelist

Dated: August 22, 2007