{ "case_number": "CAC-UDRP-102915", "time_of_filling": "2020-02-14 09:24:57", "domain_names": [ "PCPSICO.COM" ], "case_administrator": "Šárka Glasslová (Case admin)", "complainant": [ "PepsiCo, Inc." ], "complainant_representative": "RiskIQ, Inc. c\/o Jonathan Matkowsky", "respondent": [ null ], "respondent_representative": null, "factual_background": "FACTS ASSERTED BY THE COMPLAINANT AND NOT CONTESTED BY THE RESPONDENT\r\n\r\nA domain name which consists of an obvious misspelling of a trademark with no other meaning in context is considered by panels to be confusingly similar to the relevant mark for purposes of the first element\" cf. Pepsico, Inc. v. Fundacion Comercio Electronico, CAC Case No. 101999 (2018-06-27).\r\n\r\nThe Domain is an intentional misspelling of the PEPSICO mark, registered and being used so that customized emails sent or labeled as From an account on the Domain appear to be from a legitimate PepsiCo email account on the domain name. The Domain is confusingly similar because it contains the entire mark differing only by a close, intentional misspelling.\r\n\r\nIn this respect, it has been well established by numerous decisions that a domain name that consists of an intentional misspelling of a trademark is to be considered confusingly similar to the relevant trademark i.e. Capitol Federal Savings Bank v. Moniker Privacy Services \/ Charlie Kalopungi, WIPO Case No. D2011-0867: \"The disputed domain name is identical with that mark but for substitution of the numeral zero for the letter \"o\" in CAPITOL. It is plainly confusingly similar to the Complainant's trademark.\"\r\n", "other_legal_proceedings": "The Panel is not aware of any other legal proceedings pending or decided which relate to the disputed domain name.", "no_response_filed": "NO ADMINISTRATIVELY COMPLIANT RESPONSE HAS BEEN FILED. ", "rights": "The Complainant has, to the satisfaction of the Panel, shown the disputed domain name is identical or confusingly similar to a trademark or service mark in which the Complainant has rights (within the meaning of paragraph 4(a)(i) of the Policy).\r\n\r\nThis is a case of \"typosquatting“, i.e. the disputed domain name contains an obvious misspelling of the Complainant’s trademark. It is well established that the specific top level of a domain name such as “.com”, “.org” or in casu “.net” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar.\r\n\r\nPrevious panels have found that the slight spelling variations does not prevent a domain name from being confusingly similar to the complainant’s trademark. Replacing the second letter “e” in “pepsico” with the visually very similar letter “c” does not take away the confusing similarity between the domain name and the trademark \r\n\r\nSimple exchange or adding of letters is not a sufficient element to escape the finding that the disputed domain name is confusingly similar to the Complainant’s trademarks and domain names. \r\n", "no_rights_or_legitimate_interests": "The Complainant has, to the satisfaction of the Panel, shown the Respondent to have no rights or legitimate interests in respect of the disputed domain name (within the meaning of paragraph 4(a)(ii) of the Policy).\r\n\r\nThe Complainant contends that the Respondent is not affiliated with him nor authorized by him in any way to use his trademarks in a domain name or on a website. The Complainant does not carry out any activity for, nor has any business with the Respondent. ", "bad_faith": "The Complainant has, to the satisfaction of the Panel, shown the disputed domain name has been registered and is being used in bad faith (within the meaning of paragraph 4(a)(iii) of the Policy).\r\n\r\nGiven the circumstances of the case, including the provided information of the use and reputation of the Complainant’s trademark PEPSICO and the distinctive nature of this mark, it is inconceivable to the Panel in the current circumstances that the Respondent registered the disputed domain name without prior knowledge of the Complainant and the Complainant’s mark. \r\nThe Panel therefore finds that the disputed domain name was registered in bad faith.\r\n\r\nThe disputed domain name does not currently resolve to an active website. In this case the Complainant has however evidenced that the disputed domain name enables the Respondent to send emails using an e-mail address that contains the disputed domain name.\r\n\r\nFrom the examples presented to this Panel, it is clear that the Respondent uses the e-mails connected to the disputed domain name for fraudulent purposes and not for good faith use of the disputed domain name as part of an e-mail address. The Panel notes in this connection that passive holding of a domain name does not prevent a finding of bad faith use under paragraph 4(a)(iii) of the Policy. \r\n", "procedural_factors": "The Panel is satisfied that all procedural requirements under UDRP were met and there is no other reason why it would be inappropriate to provide a decision.", "decision": "Accepted", "panelists": [ "Lars Karnoe" ], "date_of_panel_decision": "2020-03-29 00:00:00", "informal_english_translation": "PepsiCo’s Background and the PEPSI, PEPSICO, and PEPSI-COLA Marks\r\n\r\nProducts of PepsiCo, Inc. (\"Complainant\") and its consolidated subsidiaries (collectively, \"PepsiCo\") are enjoyed by consumers more than one billion times a day in more than 200 countries and territories around the world. PepsiCo generated more than $64 billion in net revenue in 2018, driven by a complementary food and beverage portfolio that includes Pepsi-Cola. PepsiCo's product portfolio includes a wide range of enjoyable foods and beverages, including 22 brands, such as the flagship PEPSI brand, that generate more than $1 billion each in estimated annual retail sales. Id.\r\n\r\nPEPSI is one of the world's most iconic and recognized consumer brands globally - PepsiCo, Inc. v. Allen Othman, CAC Case No. 102380 (2019-04-23) \"In light of the evidence presented by the Complainant, the Panel finds that the disputed domain name was registered and is being used in bad faith, including through its use in association with the configuration of email accounts (MX records)\" and \"Complainant's mark is very well known\"). It has been used for soft drinks since 1911 as a shortened version of the PEPSI-COLA mark that first denoted PepsiCo's soft drinks in 1898. Indeed, PEPSI and PEPSI-COLA are famous and well-known marks in CAC Case No. 101994, the Panel recognized “PEPSI” and “PEPSI-COLA” trademarks as well known, which was cited favorably in PepsiCo, Inc. v Gtech Consults, CAC Case No. 102136 (2018-10-16), where the Panel found Complainant has established rights in \"well-known trademark PEPSI, PEPSICO and PEPSI-COLA.\" PepsiCo also owns numerous registrations for PEPSICO both in standard characters (e.g., Mexican Reg. 950496, in Class 32) as well as with design elements covering a wide variety of goods (Id., at 117-19). There are hundreds of \"PepsiCo,\" \"Pepsi-Cola,\" and \"Pepsi\" entities within PepsiCo supporting Complainant's business. PepsiCo relies on numerous domains comprised of the \"PepsiCo,\" \"Pepsi-Cola,\" and \"Pepsi\" strings, including , , and many others.\r\n\r\nThere are over nine hundred active registrations for PEPSI-variant marks reflected in the WIPO Global Brand Database. For example, PEPSI has been registered since 1985 in the United States for a wide variety of goods and services from key chains to beach towels and clothing for use since at least the 1970s.. Other representative registrations include U.S. Reg. Nos. 824,150 and '151 for PEPSI and PEPSI-COLA, first used in 1898, and other registrations from the United Kingdom, European Union, and Canada.\r\n\r\nPepsiCo has received widespread recognition from numerous firms. \r\n", "decision_domains": { "PCPSICO.COM": "TRANSFERRED" }, "panelist": null, "panellists_text": null }