Monster Energy Company v. TIMOTHY DAVIS
Claim Number: FA1512001654480
Complainant is Monster Energy Company ("Complainant"), represented by Lynda Zadra-Symes of Knobbe Martens Olson & Bear LLP, California, USA. Respondent is TIMOTHY DAVIS ("Respondent"), Ohio, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <monsterenergygear.net>, registered with eNom, Inc.
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.
David E. Sorkin as Panelist.
Complainant submitted a Complaint to the Forum electronically on December 29, 2015; the Forum received payment on December 29, 2015.
On January 4, 2016, eNom, Inc. confirmed by email to the Forum that the <monsterenergygear.net> 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 January 7, 2016, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of January 27, 2016 by which Respondent could file a Response to the Complaint, via email to all entities and persons listed on Respondent's registration as technical, administrative, and billing contacts, and to postmaster@monsterenergygear.net. Also on January 7, 2016, the Written Notice of the Complaint, notifying Respondent of the email 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 February 2, 2016, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed David E. Sorkin 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 sells beverages under the MONSTER ENERGY mark, and has done so continuously since 2002. Complainant owns registrations for MONSTER ENERGY and related marks in the United States and elsewhere, including a "Claw Icon" design mark. Complainant asserts that its MONSTER ENERGY mark is recognized by consumers as a result of Complainant's extensive marketing efforts, and states that its worldwide retail beverage sales are approximately 3 billion cans annually, generating approximately US$6 billion in revenues.
Complainant promotes its marks through various sponsorship and licensing arrangements. Complainant has distributed apparel and other merchandise bearing its marks, both directly and through licensing agreements with clothing manufacturers.
The disputed domain name <monsterenergygear.net> was registered on December 10, 2013. The registration was listed in the name of a privacy service, WhoisGuard Protected, prior to the commencement of this proceeding.
Complainant contends that the disputed domain name is identical and confusingly similar to its MONSTER ENERGY mark; that Respondent has no rights or legitimate interests in the disputed domain name; and that the disputed domain name was registered and is being used in bad faith. In support thereof, Complainant states that Respondent has used the disputed domain name to sell counterfeit MONSTER ENERGY apparel through a website that prominently features Complainant's MONSTER ENERGY mark and "Claw Icon" design mark. Complainant states that it has never licensed or authorized Respondent to use its marks.
B. Respondent
Respondent failed to submit a Response in this proceeding.
The Panel finds that the disputed domain name is confusingly similar to a mark in which Complainant has rights; that Respondent lacks rights or legitimate interests in respect of the disputed domain name; and that the disputed domain name was registered and has been used in bad faith.
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(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 (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 disputed domain name corresponds to Complainant's registered mark MONSTER ENERGY, omitting the space and appending the generic term "gear" and the ".net" top-level domain. These alterations do not diminish the similarity between the domain name and Complainant's mark. See, e.g., Monster Energy Co. v. JL Beverage Co. / Johnny Love Vodka, FA 1619081 (Forum June 29, 2015) (finding <monsterenergydrink.net> confusingly similar to MONSTER ENERGY); Hansen Beverage Co. d/b/a Monster Beverage Co. v. Huang Shouhai, FA 1408871 (Nat. Arb. Forum Nov. 7, 2011 (finding <shopmonsterenergy.com> confusingly similar to MONSTER ENERGY). The Panel finds that the disputed domain name is confusingly similar to Complainant's mark.
Under the Policy, the Complainant must first make a prima facie case that the Respondent lacks rights and legitimate interests in the disputed domain name, and then the burden shifts to the Respondent to come forward with concrete evidence of such rights or legitimate interests. See Hanna-Barbera Prods., Inc. v. Entm't Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006).
The disputed domain name incorporates Complainant's registered mark without authorization, and apparently its sole use has been to promote the sale of infringing and likely counterfeit goods. See, e.g., Griffin Technology, Inc. v. Huahuagongzi, FA 1612122 (Forum May 8, 2015) (finding lack of rights or legitimate interests in similar circumstances). Complainant has made a prima facie case that Respondent lacks rights and legitimate interests in the domain name, and Respondent has failed to come forward with any evidence of such rights or interests. Accordingly, the Panel finds that Complainant has sustained its burden of proving that Respondent lacks rights or legitimate interests in respect of the disputed domain name.
Finally, Complainant must show that the disputed domain name was registered and has been used in bad faith. Under paragraph 4(b)(iii) of the Policy, bad faith may be shown by evidence that Respondent registered the disputed domain name "primarily for the purpose of disrupting the business of a competitor." Under paragraph 4(b)(iv), bad faith may be shown by evidence that "by using the domain name, [Respondent] intentionally attempted to attract, for commercial gain, Internet users to [Respondent's] web site or other on-line location, by creating a likelihood of confusion with the complainant's mark as to the source, sponsorship, affiliation, or endorsement of [Respondent's] web site or location or of a product or service on [Respondent's] web site or location."
Respondent's registration of a domain name obviously intended to create confusion with Complainant, together with its use of that domain name in an attempt to sell infringing and likely counterfeit goods, is indicative of bad faith under these provisions of the Policy. See, e.g., OnlineShoes.com, Inc. v. Xiayu Zhi, FA 1645230 (Forum Dec. 1, 2015); Griffin Technology, Inc., supra. Respondent's attempt to shield his identity through the use of a privacy service, although not itself a conclusive indicator of bad faith, lends further support to this conclusion. See, e.g., Stafford-Miller (Ireland) Ltd. v. Whois Privacy Shield Services, FA 1596040 (Nat. Arb. Forum Jan. 26, 2015). Accordingly, the Panel finds that the disputed domain name was registered and has been used in bad faith.
Having considered the three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <monsterenergygear.net> domain name be TRANSFERRED from Respondent to Complainant.
David E. Sorkin, Panelist
Dated: February 3, 2016
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