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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

Cadbury Limited v. Marketing Total S.A.

Case No. D2007-0854

 

1. The Parties

The Complainant is Cadbury Limited, Cadbury Group IP, Bournville, Birmingham, United Kingdom of Great Britain and Northern Ireland, represented by Rouse Legal, United Kingdom of Great Britain and Northern Ireland.

The Respondent is Marketing Total S.A., Charlestown, West Indies, Saint Kitts and Nevis, of Saint Kitts and Nevis.

2. The Domain Name and Registrar

The disputed domain name <cadburyplc.com> is registered with DomainDoorman, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on June 11, 2007. On June 11, 2007, the Center transmitted by email to DomainDoorman, LLC a request for registrar verification in connection with the domain name at issue. On June 13, 2007, DomainDoorman, LLC 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”), 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 June 14, 2007. In accordance with the Rules, paragraph 5(a), the due date for Response was July 04, 2007. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on July 5, 2007.

The Center appointed Anders Janson as the sole panelist in this matter on July 17, 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

The Complainant is a global chocolate manufacturer with its principal place of business in Birmingham. The company is organized and existing under the laws of the United Kingdom of Great Britain and Northern Ireland and is part of the Cadbury Schweppes group of companies. The Complainant directly or indirectly manufactures over 50 products under the CADBURY mark. The group’s worldwide sales for confectionery sold under the CADBURY trademark amounted to approximately GBP 1,665,600,000. The Complainant has used the CADBURY trademark in connection with the sale of confectionery products in the United Kingdom of Great Britain and Northern Ireland for over 150 years and is the owner of many CADBURY trademarks around the world including the UK Trademark CADBURY No. 53575, class 30 (cocoa and chocolate) first filed in 1886, and the European Community Trademark No. E3507829, class 29 (Dairy products), 30 and 43 (Catering services for the provision of food and drink), registered 17 January 2005.

The Complainant has asserted that the Cadbury Schweppes group of companies holds over 400 domain names which contain the CADBURY name. The Complainant is the registrant of 141 of these domain names. Among the listed domain names can be mentioned: <cadburyplc.co.uk>, <Cadbury-plc.co.uk> and <Cadbury-plc.com>.

5. Parties’ Contentions

A. Complainant

The Complainant contends inter alia that:

- The disputed domain name is identical or confusingly similar to a trademark or a service mark in which the Complainant has rights;

- The Respondent has no rights or legitimate interests in respect of the disputed domain name;

- The disputed domain name was registered and is being used in bad faith; and

- That the disputed domain name <cadburyplc.com> should be transferred to the Complainant.

The Complainant has contended that the Respondent has no rights or legitimate interests in respect of the domain name. The domain name refers to a public company named Cadbury Plc which, insofar as the Complainant is aware, doesn’t exist.

Furthermore the Complainant has further asserted that it has no relationship with the Respondent. The Respondent is not known by the name Cadbury Plc, nor has the Respondent any rights of any kind in respect of the CADBURY name. The domain name is connected to a website which is essentially a directory site, featuring a mixture of links, some of which has nothing to do with the Complainant but lead to retailers and competitors sites. The Respondent is providing a commercial service under and by reference to the domain name in that it will be earning revenue from Internet users visiting the site at “www.cadburyplc.com” and then moving on to various commercial sites featured there.

B. Respondent

The Respondent did not reply to the Complainant’s contentions.

6. Discussion and Findings

Paragraph 4(a) of the Policy directs that the Complainant must prove each of the following:

(i) that the disputed domain name registered by the Respondent 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.

A. Identical or Confusingly Similar

The domain name concerned by this dispute is <cadburyplc.com>. The Complainant has shown that it holds a national and a European trademark comprising the word CADBURY. Hereby and through what the Complainant has established regarding the long time use of the name, the Panel finds that the Complainant has established that CADBURY is a well recognized and world famous trademark and that the trademark is distinctive.

The disputed domain name contains the Complainant’s mark CADBURY in its entirety, with the added suffix “plc” and the generic and functional top level domain name “.com”.

In determining whether a domain name and a trademark are identical or confusingly similar, the gTLDs and ccTLDs that constitute the suffix shall be disregarded. Accordingly, the question is whether the addition of the suffix “plc” makes the disputed domain name dissimilar to the Complainant’s registered trademarks or not.

The Panel finds that the term CADBURY incontestably is the principal part of the disputed domain name. Moreover, as the generic “plc” postfix is commonly recognized as an abbreviation indicating a type of corporate entity in the United Kingdom of Great Britain and Northern Ireland, namely “public limited company”, the addition of the word “plc” to the trademark CADBURY very likely means that Internet users are misled to assume that the website is associated with the Complainant. The disputed domain name is therefore to be considered confusingly similar to the trademark CADBURY. (See also Wipro Limited and Wipro Trademarks Holding Limited v. Global Link.Com, Ltd d/b/a/ Global Online, WIPO Case No. D2000-0656, and GA Modefine S.A. v. Mark O’Flynn, WIPO Case No. D2000-1424.) The panel holds that the Complainant has established the first element of the Policy, paragraph 4(a).

B. Rights or Legitimate Interests

The Respondent has not filed a Response. In these circumstances, when the Respondent does not have an obvious connection with the disputed domain name, a plausibly supported assertion from the Complainant that the Respondent has no right or legitimate interest is enough to shift the burden of proof to the Respondent to demonstrate that such right and legitimate interest exists. The Respondent has not demonstrated or argued that he used or prepared to use the disputed domain name in connection with a bona fide offering of goods or services or that any other rights or legitimate interests exist. Registration of a domain name in itself does not establish rights or legitimate interests for purposes of paragraph 4(a)(ii) of the Policy.

In conclusion, the Respondent has not presented any evidence of rights or legitimate interests in using the disputed domain name and has no obvious connection to it. The Panel therefore holds that the Complainant has established element (ii) of the Policy’s paragraph 4(a).

C. Registered and Used in Bad Faith

The Complainant has asserted that the Respondent’s registration and use of the disputed domain name has been made in bad faith. According to the Complainant the Respondent must have registered the Domain Name knowing of the Complainant’s rights to the CADBURY mark, given the long time use of the CADBURY trademark. The Complainant has contended that the Respondent deliberately selected the Complainants trade-mark for the domain name with a view to use it to attract Internet users by deceit to its website for commercial gain. Finally the Complainant, referring to the decisions in Wal-Mart Stores Inc. v. Marketing Total S.A., WIPO Case No. D2007-0419 and Debevoise & Plimpton LLP v. Marketing Total S.A., WIPO Case No. D2007-0451, has contended that the Respondent is a notorious cyber squatter using domain names incorporating well known trademarks as landing pages which misdirect Internet users to third party websites.

Paragraph 4(b) states four (non-exclusive) circumstances which, if found to be present, are deemed to provide evidence of bad faith in registering and using the domain name. Paragraph 4(b)(iv) states that a circumstance indicating bad faith is using a domain to intentionally attempt to attract, for commercial gain, Internet users to your website or other on-line location, by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation or endorsement of your website or location or of a product or service on your website or location.

Based on the evidence provided by the Complainant, the Panel finds it established that the website of the disputed domain name consists of a hyperlink collection where products and services of various kinds are marketed. The domain name, by these links, diverts Internet users to websites promoting and offering products and services of third parties, some in direct competition with the Complainant. The Panel has no hesitation in finding that the Respondent, by these actions, in all likelihood is trying to mislead consumers in order to attract them to other websites making them believe that the websites behind those links are associated or recommended by the Complainant. Furthermore, the Respondent cannot, according to this Panel, have been unaware of the trademark CADBURY due to its world-wide market presence.

The Panel finds, with reference to the above-mentioned and the proof provided by the Complainant, that the Respondent uses the disputed domain name in bad faith, hence having intentionally attempted to attract, for commercial gain, Internet users to web-sites, by creating a likelihood of confusion with Complainant’s mark as to the source. The Panel therefore concludes that the Complainant has proven that the Respondent was acting in bad faith pursuant to Paragraph 4(a)(iii) of the Policy.

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 <cadburyplc.com> be transferred to the Complainant.

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Anders Janson
Sole Panelist

Dated: July 31, 2007