Caribou Coffee Company, Inc. v. jau Khan
Claim Number: FA1702001715871
Complainant is Caribou Coffee Company, Inc. (“Complainant”), represented by Elizabeth C. Buckingham of Dorsey & Whitney LLP, Minnesota, USA. Respondent is jau Khan (“Respondent”), Malaysia.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <cariboucoffeebagelry.com>, registered with TurnCommerce, Inc. DBA NameBright.com.
The undersigned certifies that he has acted independently and impartially and to the best of his knowledge has no known conflict in serving as Panelist in this proceeding.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the Forum electronically on February 3, 2017; the Forum received payment on February 3, 2017.
On February 6, 2017, TurnCommerce, Inc. DBA NameBright.com confirmed by e-mail to the Forum that the <cariboucoffeebagelry.com> domain name is registered with TurnCommerce, Inc. DBA NameBright.com and that Respondent is the current registrant of the name. TurnCommerce, Inc. DBA NameBright.com has verified that Respondent is bound by the TurnCommerce, Inc. DBA NameBright.com 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 February 7, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of February 27, 2017 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@cariboucoffeebagelry.com. Also on February 7, 2017, 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 March 6, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson 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
1. Complainant operates the second largest retail coffee store chain in the United States. Complainant owns the CARIBOU COFFEE mark through its trademark registrations with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 2563579, registered April 23, 2002).
2. The <cariboucoffeebagelry.com> domain name[1] is confusingly similar to Complainant’s mark, as Respondent has simply attached the descriptive term “bagelry” and the generic top-level domain (“gTLD”) “.com.”
3. Respondent lacks rights or legitimate interests in the <cariboucoffeebagelry.com> domain name. Respondent is not commonly known by the domain name, as evidenced by the available WHOIS information. Further, Respondent has been neither licensed nor authorized to use the CARIBOU COFFEE mark.
4. Respondent has failed to provide a bona fide offering of goods or services, or a legitimate noncommercial or fair use of the <cariboucoffeebagelry.com> domain name.
5. Rather, Respondent uses the domain name to resolve to an under-construction landing page, and it appears its sole reason for registration was to sell the <cariboucoffeebagelry.com> domain name to Complainant. In fact, in response to a letter by Complainant to Respondent, Respondent replied that he would sell the domain name to Complainant for $1,800, which is well above the market price for similar domain names.
6. Respondent has registered and is using the <cariboucoffeebagelry.com> domain name in bad faith. First, Respondent has offered to sell the domain name to Complainant. Additionally, in light of the notoriety of Complainant’s marks, Respondent clearly had actual and/or constructive knowledge of Complainant’s marks at the time of registration.
B. Respondent
Respondent failed to submit a Response in this proceeding.
Respondent has consented to transfer the <cariboucoffeebagelry.com> domain name to 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 un<cariboucoffeebagelry.com> representations pursuant to paragraphs 5(f), 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 (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.”).
Preliminary Issue: Consent to Transfer
The National Arbitration Forum was copied on documentation submitted from Respondent to the Forum and Complainant, which is identified in this proceeding as “Other Correspondence.” In this document, Respondent purports to consent to the transfer of the domain name. Respondent states as follows:
I want to give away this domain free of charge.
Because Respondent has not contested the transfer of the domain name but instead agrees to transfer the domain name in question to Complainant, the Panel will forego the traditional UDRP analysis and order an immediate transfer of the <cariboucoffeebagelry.com> domain name. See Boehringer Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Forum Jan. 9, 2003) (transferring the domain name registration where the respondent stipulated to the transfer); see also Malev Hungarian Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Forum Jan. 13, 2004) (“In this case, the parties have both asked for the domain name to be transferred to the Complainant . . . Since the requests of the parties in this case are identical, the Panel has no scope to do anything other than to recognize the common request, and it has no mandate to make findings of fact or of compliance (or not) with the Policy.”); see also Disney Enters., Inc. v. Morales, FA 475191 (Forum June 24, 2005) (“[U]nder such circumstances, where Respondent has agreed to comply with Complainant’s request, the Panel felt it to be expedient and judicial to forego the traditional UDRP analysis and order the transfer of the domain names.”).
Respondent having consented to transfer the <cariboucoffeebagelry.com> domain name to Complainant, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <cariboucoffeebagelry.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: March 9, 2017
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