Westmore · UDRP DecisionCornerbakery.rest
The Panel ordered transfer of <cornerbakery.rest>. It found the Domain Name identical to the Complainant’s CORNER BAKERY trademark, found no rights or legitimate interests because the Respondent was unauthorized and used the Domain Name for pay-per-click advertising or solicitation of purchase offers, and found bad-faith registration and use based on the Respondent’s apparent awareness of the earlier mark, its pattern involving established United States restaurant and food brands, and diversion to a pay-per-click site.
The timeline behind cornerbakery.rest
Registration, the decision and the archived record of what this domain actually displayed — from public RDAP and the Internet Archive.
Westmore reconstructs the full history behind cornerbakery.rest — from public RDAP and the Internet Archive — as part of UDRP Intelligence:
The case illustrates how an exact-match domain composed of potentially descriptive words may still be transferred where the case-specific record shows targeting. The Panel acknowledged that “Corner Bakery” could, in general, support a legitimate interest, but concluded that the Respondent’s broader pattern and pay-per-click use displaced that possibility.
Result of record. The panel's reasoning and decisive facts behind each element are in the Intelligence dossier below.
WIPO Arbitration and Mediation Center ADMINISTRATIVE PANEL DECISION CBC Restaurant Corp. v. Ali Rıza Esin, Globe Restaurants, Global Gıda Tic. Tur. Ltd. Case No. D2016-1394 1. The Parties The Complainant is CBC Restaurant Corp. of Dallas, Texas, United States of America, represented by Hitchcock Evert LLP, United States of America. The Respondent is Ali Rıza Esin, Globe Restaurants, Global Gıda Tic. Tur. Ltd. of Antalya, Turkey. 2. The Domain Name and Registrar The disputed domain name <cornerbakery.rest> (the “Domain Name”) is registered with DNC Holdings, Inc. (the “Registrar”). 3. Procedural History The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on July 7, 2016. On July 8, 2016, the Center transmitted by email to the Registrar a request for registrar verification in connection with the Domain Name. On July 11, 2016, the Registrar transmitted by email to the Center its verification response 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 and 4, the Center formally notified the Respondent of the Complaint, and the proceedings commenced on July 22, 2016. In accordance with the Rules, paragraph 5, the due date for Response was August 11, 2016. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on August 12, 2016. The Center appointed Mathias Lilleengen as the sole panelist in this matter on August 19, 2016. 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 is a United States of America company who owns and operates fast-casual restaurants. The company was founded in 1991 and is based in Dallas, Texas, United States of America. The Complainant holds several trademark registrations in the United States of America since April 30, 2002, as well as in the European Union and Mexico, including thirteen trademark registrations that contain CORNER BAKERY or CORNER BAKERY CAFE. The Complainant and its predecessors have operated Corner Bakery Cafe restaurants since 1999, with more than 150 locations currently in business. The Respondent is located in Antalya, Turkey, and the Domain Name was registered on July 24, 2014. The website at the Domain Name displays advertising links. 5. Parties’ Contentions A. Complainant The Complainant has documented its trademark registrations in the Complaint. The Complainant argues that the disputed domain name is confusingly similar to the Complainant’s trademarks, because the Domain Name is identical to the Complainant’s registered CORNER BAKERY mark. The “.rest” generic Top-Level Domain (“gTLD”) extension was established to identify restaurants, which are the services rendered by the Complainant under its mark and domain names. The Complainant argues that the Respondent registered the Domain Name for a commercial purpose, either to redirect traffic from the Complainant’s website or to solicit offers for purchase. Pursuant to the Complainant, the Respondent does not use the disputed domain name in connection with a bona fide offering of goods or services. The Complainant argues that the Respondent has not been commonly known by the Domain Name, nor that the Respondent has any history of using the Domain Name in connection with a bona fide offering of goods and services. There is no relationship whatsoever between the parties and the Complainant argues that the Respondent’s use is purely commercial and intended to divert Internet traffic from the Complainant’s website. Finally, the Complainant argues that the Respondent has registered and used the Domain Name in bad faith. The Respondent’s registration was part of a scheme to attract, for commercial gain, Internet users to the Respondent’s website by creating a likelihood of confusion with the Complainant. The Respondent uses the Domain Name for a commercial purpose to divert traffic from the Complainant’s website and/or to solicit offers to purchase the Domain Name for profit. Moreover, the Complainant alleges that the Respondent has engaged in a pattern of malicious use and registration of well-known foreign trademarks in the Turkish market. The Complainant points to the fact that there is no explanation for the Respondent’s trademark registrations in Turkey of variations of famous United States of America trademarks such as WING STOP and WEBER GRILL, but to trade upon the reputation of such American trademarks. B. Respondent The Respondent did not reply to the Complainant’s contentions. 6. Discussion and Findings A. Identical or Confusingly Similar The Complainant has established that it has rights in the trademarks CORNER BAKERY and CORNER BAKERY CAFE. The test for confusingly similarity involves the comparison between the trademark and the Domain Name. In this case, the Domain Name consists of the Complainant’s trademark. For the purposes of assessing confusing similarity under paragraph 4(a)(i) of the Policy, it is generally permissible for the Panel to ignore the gTLD “.rest”. The Panel finds that the Domain Name is identical to a trademark in which the Complainant has rights in accordance with paragraph 4(a)(i) of the Policy. B. Rights or Legitimate Interests There is no evidence suggesting that the Respondent has been using the Domain Name in a way that would give it rights or legitimate interests in it. The Complainant has not granted any authorization to the Respondent to use its marks CORNER BAKERY and CORNER BAKERY CAFE. The Respondent is not using the Domain Name in connection with a bona fide offering of goods or services. It seems that the Respondent has chosen the Domain Name either to redirect traffic from the Complainant’s website to a pay-per-click advertising site, or to solicit offers for purchase of the Domain Name from the Complainant or a third party. The Panel finds that the Complainant has made out an unrebutted prima facie case that the Respondent lacks rights or legitimate interests in the Domain Name. Accordingly, the Panel finds that the Respondent has no rights or legitimate interests in respect of the Domain Name in accordance with paragraph 4(a)(ii) of the Policy. C. Registered and Used in Bad Faith The Complainant has used its trademark before the registration of the Domain Name. The Respondent’s pattern of registering trademarks and domain names similar or identical to famous brands such as WINGSTOP and WEBER GRILL suggests that the Respondent was aware of the Complainant’s trademark and its business when the Respondent registered the disputed domain name. Although it is possible on a general basis to imagine a legitimate interest in a descriptive name such as the Corner Bakery - a legitimate interest that normally would also entail a lack of bad faith - the Respondent in this case has shown an inclination to freeride on established US brands in the restaurant and food industry. Moreover, the Respondent has not replied to the Complainant’s contentions. Based on the above, the Panel finds bad faith registration. The Panel also finds use of the Domain Name in bad faith. The diversion of traffic from the Complainant’s website to a pay-per-click advertising site indicates bad faith. The Panel concludes that the Domain Name was registered and is being used in bad faith, within the meaning of paragraph 4(a)(iii) of the Policy. 7. Decision For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the Domain Name, <cornerbakery.rest>, be transferred to the Complainant. Mathias Lilleengen Sole Panelist Date: August 22, 2016
Source of record: WIPO . Reproduced for research; WIPO is the authoritative source.
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