Anheuser-Busch, LLC v. Matthew Wignall
Claim Number: FA1703001721191
Complainant is Anheuser-Busch, LLC (“Complainant”), represented by Myers Dill of HUSCH BLACKWELL LLP, Missouri, USA. Respondent is Matthew Wignall (“Respondent”), Indiana, USA.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <budlight.shop>, registered with GoDaddy.com, LLC.
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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on March 10, 2017; the Forum received payment on March 10, 2017.
On March 13, 2017, GoDaddy.com, LLC confirmed by e-mail to the Forum that the <budlight.shop> domain name is registered with GoDaddy.com, LLC and that Respondent is the current registrant of the name. GoDaddy.com, LLC has verified that Respondent is bound by the GoDaddy.com, LLC 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 March 13, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 3, 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@budlight.shop. Also on March 13, 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 April 13, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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, Anheuser-Busch, LLC, is in the business of brewing and marketing beer. In connection with its business, Complainant uses the BUD LIGHT trademark. Complainant has registered the BUD LIGHT mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,261,873, registered Dec. 20, 1983) and other trademark agencies throughout the world. Respondent’s <budlight.shop> is confusingly similar to the BUD LIGHT mark because it incorporates the mark in its entirety—less the space—and adding only the “.shop” generic top-level domain (“gTLD”).
Respondent has no rights or legitimate interests in <budlight.shop>. Respondent is not commonly known by the disputed domain name and Complainant has not licensed or permitted Respondent to use the BUD LIGHT mark. Respondent has not made any use of or made any demonstrable preparations to use the disputed domain name in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i). Currently, the disputed domain name resolves to an inactive GoDaddy page indicating that the site is parked and not in use. The failure to actively use a domain name, or failure to show demonstrable preparations to use a domain name does not give the Respondent rights under Policy ¶¶ 4(c)(i) or (iii).
Respondent has registered and used the domain name <budlight.shop> in bad faith. The disputed domain name resolves to an inactive, parked webpage. Domain ‘parking’ as evidenced here indicates bad faith under Policy ¶ 4(b)(iv). Additionally, such a failure to make an active use or show evidence of preparations of use of the disputed domain name suggests bad faith registration pursuant to Policy ¶ 4(a)(iii). The fame associated with the BUD LIGHT mark also shows Respondent’s actual or constructive knowledge of Complainant’s rights in the mark. Respondent’s registration of the disputed domain name with actual or constructive knowledge of Complainant’s rights is evidence of bad faith registration and use with regard to Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Anheuser-Busch, LLC, is in the business of brewing and marketing beer. Complainant has rights in the BUD LIGHT trademark through registration with the USPTO (e.g., Reg. No. 1,261,873, registered Dec. 20, 1983) and other trademark agencies throughout the world. Respondent’s <budlight.shop> is confusingly similar to the BUD LIGHT mark.
Respondent, Matthew Wignall, registered the <budlight.shop> domain name on November 29, 2016.
Respondent has no rights or legitimate interests in <budlight.shop>. Currently, the disputed domain name resolves to an inactive GoDaddy page indicating that the site is parked and not in use.
Respondent has registered and used the domain name <budlight.shop> 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 (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.”).
Complainant has rights in the the BUD LIGHT trademark under Policy ¶ 4(a)(i) through registration with the USPTO and other trademark agencies throughout the world. See Vanguard Trademark Holdings USA LLC v. Wang Liqun, FA 1625332 (Forum July 17, 2015) (finding, “Registration of a mark with a governmental authority (or, in this case, multiple governmental authorities) is sufficient to establish rights in the mark for purposes of Policy ¶4(a)(i)”).
Respondent’s <budlight.shop> is confusingly similar to the BUD LIGHT mark because it incorporates the mark in its entirety, omitting the space and adding only the “.shop” gTLD.
Respondent has no rights or legitimate interests in <budlight.shop>. Respondent is not commonly known by the disputed domain name. Complainant has not licensed or permitted Respondent to use the BUD LIGHT mark. A privacy service was used by Respondent, but was lifted with the commencement of this proceeding. The WHOIS information of record identifies the registrant as “Matthew Wignall. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name); see also Kohler Co. v. Privacy Service, FA1505001621573 (Forum July 2, 2015) (holding that the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii) where “Privacy Service” was listed as the registrant of the disputed domain name). See IndyMac Bank F.S.B. v. Eshback, FA 830934 (Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence that it is commonly known by the domain name).
Respondent has not made any use of or made any demonstrable preparations to use the <budlight.shop> domain name in connection with a bona fide offering of goods or services or a legitimate noncommercial or fair use. See Bloomberg L.P. v. SC Media Servs. & Info. SRL, FA 296583 (Forum Sept. 2, 2004) (“Respondent is wholly appropriating Complainant’s mark and is not using the <bloomberg.ro> domain name in connection with an active website. The Panel finds that the [failure to make an active use] of a domain name that is identical to Complainant’s mark is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii).”). Currently the disputed domain name resolves to an inactive GoDaddy page indicating that the site is parked and not in use.
Respondent has registered and used the domain name <budlight.shop> in bad faith under Policy ¶ 4(b)(iv). Panels have found bad faith to exist where a disputed domain resolves to a parked web page even though the actions of the respondent may not be attributable to the parked web page or the content of the page itself. Baylor Univ. v. Red Hot Web Gems, Inc., FA 1082178 (Forum Dec. 3, 2007) (finding that, even though a respondent does not receive any revenue from the hyperlinks displayed on the website and that the revenues are received by the parking service, a respondent still registered and used the domain name in bad faith because a respondent still allowed the parking service to access the domain name, instead of resolving the webpage to a blank page).
Respondent’s failure to make an active use or present evidence of preparations of use of the disputed domain name shows bad faith registration pursuant to Policy ¶ 4(a)(iii). See Hewlett-Packard Co. v. Martineau, FA 95359 (Forum Aug. 30, 2000) (“Respondent’s failure to submit an assertion of good faith intent to use the domain name, in addition to the passive holding of the domain name, reveal that Respondent registered and uses the domain name in bad faith.”).
Respondent has registered and used the disputed domain name in bad faith to disrupt Complainant’s business. Opportunistic bad faith under Policy ¶ 4(a)(iii) can be found where it is not possible to conceive that a respondent could make an active use of the disputed domain name that would be legitimate. See Sony Kabushiki Kaisha v. Inja, Kil, D2000-1409 (WIPO Dec. 9, 2000) (finding bad faith registration and use where it is “inconceivable that the respondent could make any active use of the disputed domain names without creating a false impression of association with the Complainant”).
Respondent’s registration of the disputed domain name with actual knowledge of Complainant’s rights is evidence of bad faith registration and use with regard to Policy ¶ 4(a)(iii). See Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent had "actual knowledge of Complainant's mark when registering the disputed domain name"). Panels have also found that actual knowledge can be inferred from the global prominence of a mark. See Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18, 2000) (finding that the respondent had actual and constructive knowledge of the complainant’s EXXON mark given the worldwide prominence of the mark and thus the respondent registered the domain name in bad faith).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <budlight.shop> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: April 26, 2017
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