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WIPO Arbitration and Mediation Center

ADMINISTRATIVE PANEL DECISION

 

Wagamama Limited v. Wagamamas

Case No. D2006-1114

1. The Parties

The Complainant is Wagamama Limited, London , United Kingdom of Great Britain and Northern Ireland, represented by Dechert, United Kingdom of Great Britain and Northern Ireland.

The Respondent is Wagamamas, c/o Dale Mont, Bellingham, Washington, United States of America.

2. The Domain Name and Registrar

The disputed domain name <wagamamas.com> is registered with eNom, Inc.

3. Procedural History

The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on August 30, 2006. On September 1, 2006 , the Center transmitted by email to eNom a request for registrar verification in connection with the domain name at issue. On September 2, 2006, eNom transmitted by email to the Center its verification response advising of the proper name of the registrant of record for the Domain Name and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient (regarding proper identification of the registrant, and failure to submit to the jurisdiction of the courts in at least one specified Mutual Jurisdiction, which must be expressly identified), the Complainant filed an amendment to the Complaint on September 13, 2006. The Center verified that the Complaint, together with the amendment to the Complaint, satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the “Policy”), 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 September 15, 2006. In accordance with the Rules, paragraph 5(a), the due date for Response was October 5, 2006. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on October 10, 2006.

The Center appointed Mark Ming-Jen Yang as the sole panelist in this matter on October 19, 2006. 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 has a portfolio of registered trademarks related to WAGAMAMA in various classes of goods and services (hereinafter referred to as the “Trademarks”). In terms of the UK and Europe, the portfolio has:

Country and Trademark	Number	Classes
Europe (OHIM) - Wagamama	810010	29, 30, 31, 32, 33, 42
Europe (OHIM) - Wagamama	3102233	35, 38, 43
Europe (OHIM) - Wagamama	2516565	3, 14, 16, 18, 21, 25
Great Britain - Wagamama	1531126	25
Great Britain - Wagamama	1504919	29, 30, 31, 32, 33, 42
Great Britain - Wagamama	1545942	9, 18, 41
Great Britain - Wagamama	2124614	16

Respondent registered the Domain Name on May 29, 2005.

5. Parties’ Contentions

A. Complainant

Complainant contends that the Domain Name is confusingly similar with the Trademarks in which it has rights , that Respondent has no legitimate interest in the Domain Name and that Respondent registered and uses the Domain Name in bad faith.

B. Respondent

Respondent did not reply to Complainant’s contentions.

6. Discussion and Findings

One requirement of fundamental due process is that a respondent has notice of proceedings that may substantially affect its rights. The Policy, Rules and Supplemental Rules establish procedures intended to assure that a respondent is given adequate notice of proceedings commenced against it, and a reasonable opportunity to respond (see, e.g., Rules, paragraph 2(a)).

In this case, this Panel is satisfied that the Center took all steps reasonably necessary to notify Respondent of the filing of the Complaint and initiation of these proceedings, and that the failure of Respondent to furnish a Response to the Complaint is not due to any omission by the Center. There is sufficient evidence in the case file for this Panel to conclude that the Center discharged its obligations under Rules, paragraph 2(a) (see Procedural History, supra).

In case of default, under paragraph 14(a) of the Rules, “the Panel shall proceed to a decision on the complaint”, and under paragraph 14(b) of the Rules, “the Panel shall draw such inferences [from the default] as it considers appropriate”. Furthermore, paragraph 15(a) of the Rules provides that a “Panel shall decide a complaint on the basis of the statements and documents submitted and in accordance with the Policy, these Rules and any rules and principles of law that it deems appropriate”. Since Respondent has not submitted any evidence, the Panel must render its decision on the basis of the uncontroverted evidence supplied by Complainant.

In accordance with paragraph 4(a) of the Policy, to succeed in this UDRP proceeding, Complainant must prove (i) that the Domain Name is identical or confusingly similar to a trademark in which it has rights, and (ii) that Respondent has no rights or legitimate interests in respect of the Domain Name, and (iii) that the Domain Name was registered and is being used in bad faith. These requirements will be considered in turn below.

A. Identical or Confusingly Similar

Complainant contends that it has rights in its Trademarks. Complainant contends (and the Panel accepts as uncontroverted) the following (as summarized from the Complaint).

Complainant was incorporated in 1991 and first began trading as “Wagamama” in 1992 in London. Complainant has used the trademark “Wagamama” for over 14 years in connection with the operation of noodle restaurants and the sale of food generally.

Complainant currently operates 43 noodle restaurants in the UK and a further 21 worldwide, including Sydney, Dubai and Amsterdam. In 2005, the Complainant served approximately 5 million customers in the UK and was recently valued at over Ј100 million.

Over the past two years, the estimated total turnover of goods sold in the United Kingdom under the “Wagamama” brand is Ј57 million. Complainant spent approximately Ј400,000 in 2003/2004 and Ј800,000 in 2004/2005 on marketing and promoting goods and services under the “Wagamama” brand. Complainant has also won numerous awards, including “Zagat’s Most Popular London Restaurant 2006”.

Furthermore, Complainant contends that the Domain Name is confusingly similar to its Trademarks. The only difference in pronunciation is a final “s” in the Domain Name that is not found in the Trademarks, and Complainant contends that this difference is not of any significance in law to avoid confusion.

The Panel accepts Complainant’s contention that it has rights in the above referenced WAGAMAMA Trademarks and finds that the Domain Name is confusingly similar to those Trademarks. The Panel concludes that the first requirement of the Policy is met.

B. Rights or Legitimate Interests

Complainant contends that Respondent has no rights or legitimate interests in the Domain Name. In particular, Complainant contends that it has not licensed or otherwise permitted Respondent to use any marks or words that incorporate or are confusingly similar with its Trademarks, and further that it would be difficult, perhaps impossible, for Respondent to use the Domain Name as the name of any business, product or service for which it would be commercially useful without violating Complainant’s rights. In other words, Complainant contends that Respondent cannot make a legitimate use of the Trademarks.

Respondent has provided no arguments or evidence of legitimate interests to counter Complainant’s contentions on this issue. By virtue of the legal status of the Trademarks as registered trademarks of Complainant, and Complainant's contentions about its efforts in promoting the Trademarks and the size and success of its restaurant and food business in Europe and worldwide, and by Complainant's contention that there is no business relationship with Respondent, Complainant convincingly argues that Respondent has no rights or legitimate interests in the Domain Name. The Panel, especially in the absence of any response from the Respondent, considers that the circumstances described in paragraph 4(c) of the Policy, of proof of legitimate interest by Respondent in the Domain Name, likely do not exist.

The Panel concludes that the second requirement of the Policy is met.

C. Registered and Used in Bad Faith

Complainant contends that Respondent registered and uses the Domain Name in bad faith.

Complainant contends that Respondent registered the Domain Name in 2005, with knowledge of Complainant’s rights in its Trademarks (by then, having been registered for thirteen years) and of its reputation with its Trademarks in the marketplace, and further contends that it is using the Domain Name to misleadingly divert Internet traffic to its own website away from Complainant’s website. The Complainant contends that,

The Panel concludes that the third requirement of the Policy 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 domain name <wagamamas.com> be transferred to the Complainant.

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Mark Ming-Jen Yang

Sole Panelist

Dated: October 31, 2006