On July 23, 2001, a Complaint about the disputed domain name, <melloyellow.com>, was filed in electronic form and in hard copy by the Complainant with the WIPO Arbitration and Mediation Center ("the Center") and copied to the subject Registrar and the Respondent.

On July 25, 2001, the Center transmitted via email to Tucows Inc. a request for registrar verification in connection with this case and on July 26, 2001, Tucows Inc. transmitted by email to the Center a verification response confirming that the Registrant for the domain name <melloyellow.com> is the Respondent.

On July 27, 2001, the Center verified that the Complaint satisfies the formal requirements of the Uniform Domain Name Dispute Resolution Policy ("the Policy") adopted by the Internet Corporation for Assigned Names and Numbers, the Rules for Uniform Domain Name Dispute Resolution Policy ("the Rules") and the Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules"). This Administrative Panel is satisfied that this is the case.

On July 27, 2001, the Center forwarded the Notification of Complaint and Commencement of Administrative Proceeding via email and post to Respondent. The due date for a Response was indicated as August 16, 2001.

On August 17, 2001, the Center sent Notification of Respondent Default via email to Respondent as no Response had been received by the due date.

On August 24, 2001, the undersigned Panelist, Mr. Mark Yang, submitted to the Center a Statement of Acceptance and Declaration of Impartiality and Independence. The Center then on August 27, 2001 transmitted via email to the parties a Notification of Appointment of Administrative Panel and Projected Decision Date, in which Mr. Mark Yang was formally appointed as the Sole Panelist and the projected Decision date was indicated as September 10, 2001. The Sole Panelist finds that this Panel was properly constituted and appointed in accordance with the Rules and the Supplemental Rules.

This Panel has not received any requests from the Complainant or the Respondent regarding further submissions, waivers or extensions of deadlines, and this Panel has not found it necessary to request any further information from the parties (taking note of the default in responding to the Complaint). The proceedings have been conducted in English.

Having reviewed the communication records in the case file provided by the Center, this Panel finds that the Center has discharged its responsibility under the Rules, paragraph 2(a), "to employ reasonably available means calculated to achieve actual notice to Respondent". Therefore, this Panel shall issue its Decision based upon the Complaint, the Policy, the Rules and the Supplemental Rules and without the benefit of the Respondent’s Response.

4. Factual Background

The Complainant is one of the world’s largest and best known soft drink companies and many of its products are sold and well-recognized worldwide. The Complainant has alleged, and the Respondent has not disputed, that the Complainant registered the Mello Yello trademark in association with soft drink products in a number of countries, including the United States in 1980, and Antigua and Barbados in 1982. The Complainant further alleges, and it has not been disputed, that its registration of Mello Yello in the United States has become incontestable under 15 U.S.C. ss. 1065 and 1115.

The Complainant also owns and operates the web site <www.melloyello.com> which automatically links to its company site <coca-cola.com> providing online information about its various products, including Mello Yello soft drinks.

On September 29, 1999, the Respondent registered the <melloyellow.com> domain name with Tucows Inc. located in Toronto, Ontario. The Complainant alleges, and it has not been disputed by the Respondent, that the Respondent operates under the disputed domain name a pornographic web site, titled "Kara’s Adult Playground", which contains links to other pornographic sites.

On March 5, 2001, Complainant’s attorney sent a letter to the Respondent demanding that the Respondent cease use of the domain name and transfer the domain name to the Complainant within thirty days.

On May 3, 2001, as no Response had been received from the Respondent, the Complainant’s attorney sent another letter to the Respondent demanding transfer of the domain name to the Complainant within thirty days.

On July 23, 2001, the Complainant filed the Complaint with the Center.

5. Parties’ Contentions

A. The Complainant alleges that the disputed domain name, <melloyellow.com>, is confusingly similar to Complainant’s Mello Yello trademark and its <melloyello.com> domain name, that the Respondent has no rights to or legitimate interest in the disputed domain name, and that the disputed domain name is registered and being used in bad faith. The Complainant requests the transfer of the disputed domain name to the Complainant.

B. The Respondent has not submitted a Response and is therefore in default.

6. Discussion and Findings

One requirement of fundamental due process is that a Respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a Respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).

In this case, this Panel is satisfied that the Center took all steps reasonably necessary to notify the Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of the Respondent to furnish a Response to the Complaint is not due to any omission by the Center. There is sufficient evidence, in the case file provided by the Center, for this Panel to conclude the Center discharged its obligations under Rules, paragraph 2(a) (see Procedural History, supra).

Where there is default, under Rule 14(a), "the Panel shall proceed to a decision on the complaint", and under the Rule 14(b), "the Panel shall draw such inferences [from the default] as it considers appropriate". Furthermore, Rule 15(a) provides that a "Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate". Since the Respondent has not submitted any material and has not contested the allegations made by the Respondent, the Panel is left to render its decision on the basis of the uncontroverted allegations made, and the evidence supplied, by the Complainant.

Paragraph 4(a) of the Policy sets forth three elements that must be established by a Complainant to merit a finding that a Respondent has engaged in abusive domain name registration, and to obtain relief. These elements are:

(i) Respondent’s domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights; and

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

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

Each of the aforesaid three elements must be proven by a Complainant to warrant relief.

The Complainant owns the trademark registrations for the mark Mello Yello in many countries including the United States and Antigua & Barbados. The Complainant has used the trademark in commerce for a significant period of time and alleges to have achieved recognition for its products bearing such trademark, which allegation is not contested. This Panel determines that Complainant has rights in such trademark.

The Complainant further alleges that that the disputed domain name is confusingly similar to the Complainant’s trademark, Mello Yello, and that Respondent cannot avoid the likelihood of confusion simply by adding a non-distinctive "w" at the end of the domain name. The Panel notes that the expressions "Mello Yello" and "Mello Yellow" are undoubtedly very similar in appearance and identical in sound. In the absence of any evidence to the contrary, this Panel concludes that the disputed domain name is confusingly similar to the Complainant’s trademark, Mello Yello.

With respect to paragraph 4(a)(iii) of the Policy (i.e., the Respondent having registered and used the disputed domain name in bad faith), the Complainant alleges the following facts, undisputed by the Respondent.

The Complainant alleges that it has spent millions of dollars in advertising and promoting its Mello Yello soft drinks and has sold hundreds of millions of dollars worth of products in connection with the Mello Yello trademark throughout the United States and Central America, including Antigua and Barbados. The Complainant further alleges that the Respondent’s use of the disputed domain name for its web site is simply an effort to use the reputation and goodwill of the Complainant’s trademark to mislead consumers to the Respondent’s pornographic site. In paragraph 21 of the Complaint, the Complainant provides, by way of examples, two web sites that allegedly contained links that were meant to connect to the Complainant’s web site under <MelloYello.com>, but were misconnected to the Respondent’s pornographic site.

The Complainant thus concludes that the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its web site by creating a likelihood of confusion with the Complainant’s trademark, and this is evidence of the Respondent’s registration and use of the domain name in bad faith under paragraph 4(b)(iv) of the Policy.

The Panel also notes that the Respondent registered the disputed domain name anonymously with an apparently false telephone number of "123-345-6789".

Based on the evidence provided by the Complainant, and in the absence of any allegations or evidence to the contrary by the Respondent, the Panel is left to conclude that the Complainant’s allegation of registration and use in bad faith by the Respondent has been proven under paragraph 4(b)(iv) of the Policy.

With respect to paragraph 4(a)(ii) of the Policy (i.e., the Respondent having no legitimate interest in the disputed domain name), the Complainant alleges the following facts, undisputed by the Respondent.

There is nothing about the words "mello", "mellow" or "yellow" that relates in any way to the Respondent or Respondent’s web site. Neither the Respondent nor its web site has been commonly known by the disputed domain name. The Respondent is an unknown individual and the Respondent’s web site is titled "Kara’s Adult Playground". The Respondent has no authorization from the Complainant to use its trademark or domain name. "Kara’s Adult Playground" and many of the other pornographic sites linked from it charge money for access to the sites.

From the foregoing, the Complainant concludes that the circumstances described in paragraphs 4(c)(ii) and 4(c)(iii) of the Policy, for proof of legitimate interest by the Respondent in the disputed domain name, do not exist. The Panel accepts these conclusions.

The Complainant further alleges that that the offering of pornographic services under a domain name that is confusingly similar to a third party’s well-known trademark cannot be a bona fide offering of goods or services, and therefore, the circumstances described in paragraph 4(c)(i) of the Policy, for proof of legitimate interest by the Respondent in the disputed domain name, do not exist. The Respondent has not disputed the reputation of the Complainant’s trademark or alleged any facts that support the contention that its use of the expression "Mello Yellow" as a domain name is for a reason other than to take advantage of the reputation of the Complainant’s trademark. Under these circumstances, the Panel is left to conclude that the Respondent has no right to or legitimate interest in the disputed domain name.

7. Decision

This Panel finds, within the meaning of paragraph 4(a) of the Policy, that <melloyellow.com> is confusingly similar to Complainant’s trademark Mello Yello; that the Respondent has no rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name has been registered and is being used in bad faith. This Panel orders that the domain name <melloyellow.com> be transferred to the Complainant.

Mark M. Yang
Sole Panelist

Dated: September 10, 2001