PepsiCo, Inc. v. Jeremy Newsum
Claim Number: FA1510001641274
Complainant is PepsiCo, Inc. (“Complainant”), represented by Paul D. McGrady of Winston & Strawn, Illinois, USA. Respondent is Jeremy Newsum (“Respondent”), Idaho, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <pepsicofinanceeurope.com> ('the Domain Name'), registered with ENOM, INC..
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
<<Dawn Osborne of Palmer Biggs>> as Panelist.
Complainant submitted a Complaint to the Forum electronically on October 6, 2015; the Forum received payment on October 7, 2015.
On October 7, 2015, ENOM, INC. confirmed by e-mail to the Forum that the <pepsicofinanceeurope.com> domain name is registered with ENOM, INC. and that Respondent is the current registrant of the name. ENOM, INC. has verified that Respondent is bound by the ENOM, INC. registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On October 8, 2015, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of October 28, 2015 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@pepsicofinanceeurope.com. Also on October 8, 2015, the Written Notice of the Complaint, notifying Respondent of the e-mail addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the Forum transmitted to the parties a Notification of Respondent Default.
On November 2, 2015, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Dawn Osborne of Palmer Biggs Legal as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the Forum has discharged its responsibility under Paragraph 2(a) of the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules") "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the Forum's Supplemental Rules and any rules and principles of law that the Panel deems applicable, without the benefit of any response from Respondent.
Complainant requests that the domain name be transferred from Respondent to Complainant.
A. Complainant
Complainant is the owner of the world famous PEPSI mark, brand and trade name. It was first used for soft drinks in 1911 as a shortened version of the PEPSI-COLA mark that first denoted Complainant's soft drinks in 1898. Complainant is one of the world's largest food and beverage companies with an annual revenue of USD 55 Million selling a variety of products in more than 200 countries.
Complainant owns numerous worldwide trade mark registrations for the PEPSI marks including registrations in the US, the UK and the European Community for its products. Through extensive advertisement and continuous use the mark has become famous throughout the world.
Complainant operates under the PEPSICO name which has been in use since 1965 and owns a number of domain names containing this trade name and the PEPSI mark.
Respondent registered the Domain Name on November 11, 2014 with full knowledge of the Complainant’s famous marks and trade name and with the intent to profit from using the Complainant’s trade marks. Respondent is using the domain name to divert consumers to a 'phishing' web site for a financial services company called Pepsico Finance Europe Limited. The web site has no active links. The web site also has no connection with the Complainant or Complainant’s PEPSI trade marks or PEPSICO trade name.
The Domain Name is confusingly similar to the Complainant’s mark because it fully incorporates Complainant's PEPSI marks and trade name and its PEPSICO trade name adding only the generic terms 'finance' and 'europe' and the top level domain .com. Such additions to registered trade marks or well known trade names do not make the disputed domain any less confusingly similar.
Respondent lacks rights or legitimate interests in the Domain Name and is not making legitimate or fair use of it.
Respondent has never been commonly known as the Domain Name and has only made infringing use of the Complainant’s mark. It is not bona fide use to use someone else's well known mark. The Complainant has not given any consent to the Respondent to use the Complainant’s marks. The use of the name shows that the Respondent had actual knowledge of the Complainant.
The Respondent’s web site is a classic example of a phishing web site purporting to offer financial services to steal valuable information from Internet users by deception. This cannot be bona fide use.
Phishing is compelling evidence of use and registration of a Domain Name in bad faith.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Respondent is using the domain name, registered in 2014, to divert consumers to a 'phishing' web site for a financial services company called Pepsico Finance Europe Limited which is not connected to the Complainant.
Paragraph 15(a) of the Rules instructs this Panel to "decide a complaint on the basis of the statements and documents submitted in accordance with the Policy, these Rules and any rules and principles of law that it deems applicable."
Paragraph 4(a) of the Policy requires that Complainant must prove each of the following three elements to obtain an order that a domain name should be cancelled or transferred:
(1) the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the domain name has been registered and is being used in bad faith.
In view of Respondent's failure to submit a response, the Panel shall decide this administrative proceeding on the basis of Complainant's undisputed representations pursuant to paragraphs 5(e), 14(a) and 15(a) of the Rules and draw such inferences it considers appropriate pursuant to paragraph 14(b) of the Rules. The Panel is entitled to accept all reasonable allegations and inferences set forth in the Complaint as true unless the evidence is clearly contradictory. See Vertical Solutions Mgmt., Inc. v. webnet-marketing, inc., FA 95095 (Nat. Arb. Forum July 31, 2000) (holding that the respondent’s failure to respond allows all reasonable inferences of fact in the allegations of the complaint to be deemed true); see also Talk City, Inc. v. Robertson, D2000-0009 (WIPO Feb. 29, 2000) (“In the absence of a response, it is appropriate to accept as true all allegations of the Complaint.”).
The Domain Name consists of the Complainant's PEPSI registered mark, the generic terms 'co', 'finance' and 'europe' and the gTLD .com. It can also be seen as incorporating PEPSICO which is a trading name in which the Complainant has common law rights.
Prior panels have found that adding generic terms to use of a Complainant’s mark in a domain name does little to remove confusing similarity from a disputed mark. See Disney Enters. Inc v McSherry, FA 154589 (Nat. Arb. Forum June 17, 2003) (finding disneyvacationvillas.com to be confusingly similar to the Complainant’s DISNEY mark because it incorporated the Complainant's mark in its entirety and merely added two generic terms to it.)
The gTLD .com does not serve to distinguish the Domain Name from the Complainant's PEPSI mark, which is the distinctive component of the Domain Name. See Red Hat Inc v Haecke FA 726010 (Nat Arb Forum July 24, 2006) (concluding that the redhat.org domain name is identical to the complainant's red hat mark because the mere addition of the gTLD was insufficient to differentiate the disputed domain name from the mark).
Accordingly, the Panel holds that the Domain Name is confusingly similar for the purposes of the Policy with a mark in which the Complainant has rights.
As such the Panel holds that Paragraph 4 (a) (i) of the Policy has been satisfied.
Respondent is using the Domain Name to divert Internet users seeking the Complainant's web site to the Respondent's for gain in that is seeks to obtain users' personal information, conduct known as 'Phishing'. Prior panels have found that 'phishing' is not legitimate use or bona fide offering of goods and services under Policy 4 (c)(i). See Blackstone TM LLC v Mita Irelant Ltd., FA 1314998 (Nat Arb Forum Apr. 30, 2010).('The Panel finds that Respondent’s attempt to 'Phish' for users personal information is neither a bona fide offering of goods and services pursuant to Policy 4 (c) (i) nor a legitimate non commercial or fair use pursuant to Policy 4 (c) (iii).)
As such the Panelist finds that the Respondent does not have rights or a legitimate interest in the Domain Name and that the Complainant has satisfied the second limb of the Policy.
The Respondent’s site is gathering customer information using the Complainant’s PEPSI mark. The use shows actual knowledge of the Complainant’s PEPSI mark and use of it to deceive Internet users into giving up their data which can be sold or otherwise misused for profit. See Capital FIn. Corp. & Capital One Bank v Howel FA 289304 (Nat. Arb, Forum Aug. 11, 2003) (Holding that as the capitalonebank.biz domain name was confusingly similar to Complainant’s mark, it was being used to acquire personal information from Complainant’s clients constituting bad faith registration and use. ) See Wells Fargo & Co. v Maniac State FA 608239 (Nat. Arb. Forum Jan 19, 2006)(Finding bad faith registration and use where respondent was using the wellsbankupdate.com domain name in order to fraudulently acquire the personal and financial information of the Complainant’s customers.)
As such, the Panel holds that the Complainant has made out its case that the Domain Name was registered and used in bad faith to disrupt the Complainant’s business and has satisfied the third limb and s4 (a) (iii) of the Policy.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <pepsicofinanceeurope.com> domain name be TRANSFERRED from Respondent to Complainant .
Dawn Osborne, Panelist
Dated: <<November 6, 2015>>
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page