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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

PepsiCo, Inc v. #1147120 Moniker Privacy Services/DNS, Admin, Nevis Domains

Case No. D2008-1125

1. The Parties

The Complainant is PepsiCo, Inc, Purchase, New York, United States of America, represented by Kilpatrick Stockton, LLP, United States of America.

The Respondent is #1147120 Moniker Privacy Services/DNS, Admin, Nevis Domains, Charlestown, Nevis, Saint Kitts and Nevis.

2. The Domain Name and Registrar

The disputed domain name <pepsiproductsfacts.com> is registered with Moniker Online Services, LLC.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 24, 2008. On July 25, 2008, the Center transmitted by email to Moniker Online Service, LLC a request for registrar verification in connection with the disputed domain name. On July 29, 2008, Moniker Online Services, LLC transmitted by email to the Center its verification response disclosing registrant and contact information for the disputed domain name which differed from the named Respondent and contact information in the Complaint. The Center sent an email communication to the Complainant on July 30, 2008 providing the registrant and contact information disclosed by the Registrar, and inviting the Complainant to submit an amended Complaint. The Complainant filed an amended Complaint on July 31, 2008. 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 the Respondent of the Complaint, and the proceedings commenced on August 6, 2008. In accordance with the Rules, paragraph 5(a), the due date for Response was August 26, 2008. The Respondent did not submit any Response. Accordingly, the Center notified the Respondent’s default on August 27, 2008.

The Center appointed Christopher J. Pibus as the sole panelist in this matter on September 4, 2008. 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 the owner of the well-known PEPSI and PEPSI-COLA marks. For over a century, the Complainant has used the PEPSI-COLA and PEPSI marks in connection with soft drinks and soft drink concentrates. The Complainant’s PEPSI-branded soft drinks and soft drink concentrates are sold virtually worldwide. The PEPSI-COLA mark was first used in connection with soft drinks in 1898 by its inventor Mr. Caleb Bradham in North Carolina, United States of America. The PEPSI mark was first used on soft drinks in 1911. The Complainant’s marks have been in continuous use for 97 years. The Complainant’s PEPSI marks have been valuated by Business Week and Interbrand as being worth over USD 12.8 billion, making the Complainant’s marks the 26th most valuable brand in the world. The Complainant’s worldwide sales are estimated at USD 98 billion in 2007, with the PEPSI-COLA beverage alone accounting for USD 15 billion.

The Complainant has registered the PEPSI-COLA and PEPSI trademarks, together with various logos that combine or include the Complainant’s PEPSI trademarks, in many countries in the world. In the United States of America, the Complainant’s owns over 100 registrations and applications for PEPSI and PEPSI-related trademarks.

The Complainant has conducted global advertising campaigns with respect to its products in the form of advertisements in international magazines, newspapers, television, radio, outdoor signage, point-of-purchase displays etc., and through sponsorship of major cultural and sporting events around the world.

The Complainant owns numerous domain names that contain PEPSI as a dominant element. The Complainant also owns and operates a website that is dedicated to providing detailed information about its products at <pepsiproductfacts.com>.

The Respondent registered the domain name <pepsiproductsfacts.com> on September 22, 2007. At the time of the Complaint, the Respondent was operating a website in connection with the disputed domain name, which provided links to other websites.

5. Parties’ Contentions

A. Complainant

(a) Identical or Confusingly Similar

The Complainant contends that the domain name <pepsiproductsfacts.com> is confusingly similar to the Complainant’s trademarks PEPSI-COLA and PEPSI.

The Complainant submits that the domain name includes the famous PEPSI trademark in its entirety, together with two common words or phrases, namely “products facts”. Those common words or phrases relate directly to the products and services offered by the Complainant. The Complainant contends that the use of common words or phrases that relate directly to the wares and/or services of the Complainant’s trademarks do not serve to distinguish the domain name from the Complainant’s PEPSI trademarks.

The Complainant also submits that the Respondent is taking advantage of Internet users who mistype the Complainant’s domain name <pepsiproductfacts.com> by adding an additional letter “s” after the word “product” in the disputed domain name.

(b) Rights or Legitimate Interests

The Complainant contends that the Respondent cannot demonstrate or establish any rights or legitimate interests in the disputed domain name. The Respondent registered the domain name in question long after the Complainant had established rights in the PEPSI trademarks. The Complainant submits that its rights in the PEPSI trademarks are so well-known it is not possible that the Respondent was unaware of the Complainant’s rights. The Complainant submits that there is no relationship between the Complainant and the Respondent giving rise to any license, permission or other right by which Respondent could own or use any domain name incorporating the Complainant’s PEPSI trademark. The Complainant further submits that the Respondent is not known or identified by the disputed domain name. The Complainant also submits that the Respondent is not using the domain name in a manner which offers bona fide goods and/or services. The Complainant contends that the Respondent is operating a website that provides links to other websites for the purpose of monetary gain. The Complainant contends that the Respondent has not established any rights or legitimate interests in the disputed domain name. The Complainant’s attorneys sent the Respondent demand letters, seeking transfer of the domain name and the disabling of the associated website on two separate occasions. The Respondent did not respond to those letters.

(c) Registered and Used in Bad Faith

The Complainant contends that the domain name <pepsiproductsfacts.com> has been registered and is being used in bad faith based on the following factors:

(i) Respondent’s knowledge of the well-known PEPSI trademarks at the time of registration of the dispute domain name;

(ii) Respondent’s registration of a confusingly similar domain name; and

(iii) Respondent’s use of a confusingly similar domain name to operate a website that provide links to other websites for purposes of monetary gain.

B. Respondent

The Respondent did not file a Response or otherwise reply to the Complainant’s contentions.

6. Discussion and Findings

According to paragraph 4(a) of the Policy, in order to succeed, the Complainant must establish each of the following elements:

(i) The domain name is identical or confusingly similar to the trademark or service mark in which the Complainant has rights;

(ii) The Respondent has no rights or legitimate interest in respect of the domain name; and

(iii) The domain name has been registered and is being used in bad faith.

A. Identical or Confusingly Similar

The Panel finds that the Complainant has established rights in the PEPSI trademarks, by virtue of U.S. Registration Nos. 55,199; 349,886; 824,151; 2,100,417; and the many other registrations, which were attached to the Complaint.

The Panel finds that the domain name <pepsiproductsfacts.com> is confusingly similar to the Complainant’s registered PEPSI trademarks, because the domain name contains as a dominant element the Complainant’s PEPSI trademark exactly and in its entirety. The Panel finds that the addition of the common words “products” and “facts” do not serve to distinguish the domain name from the trademark.

The Panel also notes the Complainant’s domain name and associated website <pepsiproductfacts.com>, which is dedicated to providing information regarding the Complainant’s PEPSI-branded products. The addition of a letter “s” to the word “product” by the Respondent is indicative that the Respondent was attempting to take advantage of Internet users who mis-typed the Complainant’s domain name, and thereby re-directing them to the Respondent’s website. This type of conduct is considered “typosquatting” by many panels.

Therefore, the Panel finds that the Complainant has satisfied the first requirement of paragraph 4(a) of the Policy.

B. Rights or Legitimate Interests

The Panel finds no evidence that the Respondent ever had any rights or legitimate interests in the domain name in dispute. The Respondent registered the domain name almost 100 years after the Complainant had registered the PEPSI trademark in the United States of America. The Panel finds no evidence that the Respondent was ever known by the disputed domain name. The Panel accepts the Complainant’s assertion that it never licensed or authorized the Respondent to use the PEPSI trademarks. The Panel further accepts that the Respondent is not affiliated or related to the Complainant in any manner.

The Panel finds that the Respondent is not using the domain name in connection with a bona fide offering of goods and services. The Complainant has filed evidence in this proceeding showing that the Respondent is operating a website in connection with the disputed domain name which provides links to other websites for the purposes of monetary gain. In these circumstances the operation of a “click-through” site is not by itself evidence of a bona fide offering of goods and services.

The Panel is therefore satisfied that the Complainant has made a prima facie showing of the Respondent’s lack of rights or legitimate interests in the disputed domain name. Once a complainant has made this prima facie showing, the Respondent must come forward with evidence that rebuts this presumption (Document Technologies, Inc. v. International Electronic Communications Inc., WIPO Case No. D2000-0270).

As the Respondent has not filed any Response, the Panel finds that the Complainant has satisfied the second requirement of paragraph 4(a) of the Policy.

C. Registered and Used in Bad Faith

The uncontested evidence shows that the Complainant’s trademark PEPSI is distinctive and well-known in the United States of America. and internationally, including Saint Kitts and Nevis the country where the Respondent is located. The uncontested evidence shows that the Complainant’s PEPSI trademarks have become well-known around the world and that PEPSI-branded products are consistently recognized as famous. Panels have acknowledged in many decisions that the PEPSI trademark is “…one of the world’s most famous and valuable…” (Pepsico, Inc. v. Diabetes Home Care, Inc. & DHC Services, WIPO Case No. D2001-0174). See also PepsiCo, Inc. v. Johan De Broyer, WIPO Case No. D2007-1021; Pepsico, Inc. v. Domain Admin, WIPO Case No. D2006-0435. Accordingly, the Panel therefore infers that the Respondent had actual knowledge of the Complainant’s trademark rights when it registered the domain name <pepsiproductsfacts.com>.

The Panel also finds that the Respondent registered the disputed domain name and is using the domain name for the operation of a “click-through” website which provides links to other websites for the purpose of monetary gain. The evidence shows that the Respondent was not authorized or licensed to use the Complainant’s trademark. The Respondent appears to have deliberately traded on the goodwill of the Complainant through typosquatting. The Respondent has replicated the Complainant’s trademark in its entirety and added the letter “s” after the word “product”, thereby attracting Internet users and diverting Internet traffic intended for the Complainant’s website to the Respondent’s website for the purpose of monetary gain. Prior panels have recognized this type of conduct as evidence of bad faith (see MasterCard International Incorporated v. ZJ, WIPO Case No. D2007-0687 and MasterCard International Incorporated v. Eric Hochberger, WIPO Case No. D2006-1050).

For these reasons, the Panel finds that the Complainant has satisfied the third requirement of paragraph 4(a) 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, <pepsiproductsfacts.com> be transferred to the Complainant.

Christopher J. Pibus
Sole Panelist

Date: September 18, 2008