The Complainant is Perfetti Van Melle SpA of Lainate, Italy, represented internally.
The Respondent is Zine Z James of Norman, Oklahoma, United States of America.
2. The Domain Name and Registrar
The disputed domain name <chupachupsorg.com> is registered with Todaynic.com, Inc.
3. Procedural History
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on April 2, 2010. On April 6, 2010, the Center transmitted by email to Todaynic.com, Inc. a request for registrar verification in connection with the disputed domain name. On April 7, 2010 and April 8, 2010, Todaynic.com, Inc. transmitted by emails to the Center its verification responses 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” or “UDRP”), 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 April 9, 2010. In accordance with the Rules, paragraph 5(a), the due date for Response was April 29, 2010. The Respondent did not submit any response. Accordingly, the Center notified the Respondent's default on April 30, 2010.
The Center appointed Nayiri Boghossian as the sole panelist in this matter on May 6, 2010. 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 owns the trademark registrations IR 292290 registered in 1964, IR 499153 registered in 1986, United States registration no. 2205790 registered in 1998 for the word mark CHUPA CHUPS. It also owns United States registration no. 2396044 for the word mark CHUPA CHUPS with design, registered in 2000. It further owns a substantive number of registrations and applications, which include the word mark CHUPA CHUPS either alone or with logo's as seen from the print out submitted by the Complainant.
The Complainant has registered the domain name <chupachups.org> in 1998.
The trademark CHUPA CHUPS is defined on Wikepedia encyclopedia and shows that the company manufacturing the CHUPA CHUPS branded lollipops was incorporated in 1958 and is currently owned by the Complainant.
The disputed domain name was registered on September 23, 2009.
5. Parties' Contentions
A. Complainant
The Complainant contends owning the trademark CHUPA CHUPS, which has been used in connection with lollipops since 1958, firstly in Spain, and subsequently in various parts of the world.
The Complainant claims that the disputed domain name is confusingly similar to the trademark of the Complainant as it incorporates the entire trademark and simply adds to it the letters “org”, which cannot create a distinction. In fact, adding these letters can create the impression that the relevant website would contain information about the company of the Complainant.
The Complainant contends that the Respondent has no rights or legitimate interests in the disputed domain name as it has not been commonly known by the disputed domain name nor has acquired any rights due to prior use. The Complainant expresses a fear that the website of the disputed domain name will attempt to exploit the fame of the trademark of the Complainant.
The Complainant contends that the domain name was registered and is used in bad faith as the Complainant has no relation whatsoever with the Respondent and the latter had not requested an authorization to register the disputed domain name. The Complainant further contends that the Respondent's bad faith is highlighted by the fact that the Respondent has provided wrong contact information in its registration of the domain name. Furthermore, the Respondent must have known of the existence and the fame of the trademark of the Complainant through a simple Internet search or trademark search. The Respondent should have assumed that Internet users would presume the existence of a link between the Complainant and the disputed domain name.
B. Respondent
The Respondent did not reply to the Complainant's contentions.
6. Discussion and Findings
The Complainant must establish each element of paragraph 4(a) of the Policy, namely:
(i) the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights;
(ii) the Respondent has no rights or legitimate interests in respect of the disputed domain name; and
(iii) the disputed domain name has been registered and is being used in bad faith.
A. Identical or Confusingly Similar
The Complainant has established its rights in the trademark CHUPA CHUPS through various materials submitted to the Panel. The use of the trademark CHUPA CHUPS by adding the letters “org” is not enough to eliminate the confusion with the trademark of the Complainant. Therefore, the Panel finds that the disputed domain name is confusingly similar to the trademark of the Complainant.
B. Rights or Legitimate Interests
The Complainant has indicated that it has never authorized the use of its trademark by the Respondent. The Panel notes that there are no indications that the Respondent is commonly known by the disputed domain name.
The Panel's attempts to verify how the domain name is being used were not successful as the web page it leads to is not accessible. The Panel kept receiving the message “Internet Explorer cannot display the webpage”. The Complainant did not indicate whether the domain name leads to a website that offers any goods or services. The Panel concludes that the Respondent is not making any use of the registration of the domain name. The Panel believes that there is nothing showing that the disputed domain name is used or will be used in connection with a bona fide offering of goods or services. The Panel also finds that there is nothing indicating a legitimate noncommercial or fair use of the domain name by the Respondent.
The Respondent did not submit a response and in the absence of such response, the Panel believes that the Complainant met the requirement of prima facie showing that the Respondent does not have any rights or legitimate interests. See, Champion Innovations, Ltd. v. Udo Dussling (45FHH), WIPO Case No. D2005-1094; Investissement Marius Saradar S.A.L. (Holding Company) and Banque Saradar S.A.L. v. John Naffah and Z Publishing Inc, WIPO Case No. D2000-0853.
C. Registered and Used in Bad Faith
The Panel was not able to verify the use of the disputed domain name by the Respondent. However, the Panel believes that the element of bad faith exists in light of the fact that the trademark CHUPA CHUPS is a well-known trademark and that the Respondent knew or should have known of its existence. See, The Gap, Inc. v. Deng Youqian, WIPO Case No. D2009-0113. Accordingly, the Panel finds that this requirement is met.
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 disputed domain name <chupachupsorg.com> be transferred to the Complainant.
Nayiri Boghossian Sole Panelist
Dated: May 11, 2010
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