Anheuser-Busch, Incorporated v. Mike Morgan
Claim Number: FA0608000785495
Complainant is Anheuser-Busch, Incorporated (“Complainant”), represented by Andrea K. Cannon, of Anheuser-Busch Companies, Inc., One Busch Place, St. Louis, MO 63118. Respondent is Mike Morgan (“Respondent”), 12 Webster Place, CBS, Topsail, Newfoundland A1W 5M7 CA.
REGISTRAR
AND DISPUTED DOMAIN NAME
The domain name at issue is <budweisertv.com>, registered with Enom, Inc.
The undersigned certifies that he or she has acted independently and impartially and to the best of his or her knowledge has no known conflict in serving as Panelist in this proceeding.
Judge Harold Kalina (Ret.) as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 25, 2006; the National Arbitration Forum received a hard copy of the Complaint on August 31, 2006.
On August 29, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <budweisertv.com> 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-name disputes brought by third parties in accordance with ICANN's Uniform Domain Name Dispute Resolution Policy (the "Policy").
On August 31, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 20, 2006 by which Respondent could file a response to the Complaint, was transmitted to Respondent via e-mail, post and fax, to all entities and persons listed on Respondent's registration as technical, administrative and billing contacts, and to postmaster@budweisertv.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 26, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Judge Harold Kalina (Ret.) as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the National Arbitration 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." Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the National Arbitration 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 makes the following assertions:
1. Respondent’s <budweisertv.com> domain name is confusingly similar to Complainant’s BUDWEISER mark.
2. Respondent does not have any rights or legitimate interests in the <budweisertv.com> domain name.
3. Respondent registered and used the <budweisertv.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Anheuser-Busch, Inc., is a leading American brewer of beer. In connection with the brewing, marketing and distribution of its BUDWEISER branded beer, Complainant holds a trademark registration for the BUDWEISER mark with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 64,125 issued July 3, 1905). Complainant has extensively advertised and distributed its beer under the BUDWEISER mark for over 100 years and has sponsored numerous major sporting and entertainment events internationally. In the beginning of February, 2006, Complainant introduced its upcoming marketing campaign entitled “BUDTV.” Complainant submitted extrinsic evidence from a newspaper publication regarding this announcement dated February 4, 2006.
Respondent registered the <budweisertv.com> domain name on February 5, 2006, shortly after Complainant’s announcement regarding its upcoming “BUDTV” marketing campaign. Since its registration, the disputed domain name has never resolved to any content.
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."
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(e), 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.”).
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.
Complainant has established rights in the BUDWEISER mark through registration of the mark with the USPTO. See Innomed Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”); see also Vivendi Universal Games v. XBNetVentures Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003) (“Complainant's federal trademark registrations establish Complainant's rights in the BLIZZARD mark.”).
Complainant asserts that the <budweisertv.com> domain name is confusingly similar to its BUDWEISER mark. The disputed domain name contains Complainant’s BUDWEISER mark in its entirety and adds the letters “T” and “V,” which is a common abbreviation for the term “television.” The Panel finds the <budweisertv.com> domain name to be confusingly similar to Complainant’s BUDWEISER mark for the purposes of Policy ¶ 4(a)(i). See Victoria’s Secret et al v. Plum Promotions, FA 96503 (Nat. Arb Forum Feb. 27, 2001) (finding the <victoriassecrettv.com> domain name to be confusingly similar to complainant’s VICTORIA’S SECRET mark); see also Am. Online, Inc. v. iDomainNames.com, FA 93766 (Nat. Arb. Forum Mar. 24, 2000) (finding that the respondent’s domain name <go2AOL.com> was confusingly similar to the complainant’s AOL mark).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Pursuant to Policy ¶ 4(a)(ii), Complainant bears the initial burden of proof to make a prima facie showing that Respondent lacks rights and legitimate interests in the disputed domain name. Once Complainant establishes such a showing, the burden shifts to Respondent to come forward with evidence that refutes Complainant’s assertions and evidentiary submissions. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, where the complainant has asserted that the respondent has no rights or legitimate interests with respect to the domain name, it is incumbent on the respondent to come forward with concrete evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”). The Panel finds Complainant to have fulfilled its initial burden through its uncontested assertions and evidentiary submissions.
Respondent’s failure to submit a Response in this proceeding raises a presumption that Respondent lacks rights and legitimate interests in the disputed domain name. See Parfums Christian Dior v. QTR Corp., D2000-0023 (WIPO Mar. 9, 2000) (finding that by not submitting a response, the respondent has failed to invoke any circumstance which could demonstrate any rights or legitimate interests in the domain name); see also Geocities v. Geociites.com, D2000-0326 (WIPO June 19, 2000) (finding that the respondent has no rights or legitimate interests in the domain name because the respondent never submitted a response or provided the panel with evidence to suggest otherwise). The Panel, however, chooses to analyze the record to determine if Respondent has rights or legitimate interests in the disputed domain name pursuant to Policy ¶ 4(c).
Complainant asserts that Respondent is not commonly known by
the disputed domain name. According to
the WHOIS registry, the registrant of the disputed domain name is “Mike Morgan”
of Topsail, Newfoundland. Due to the
fact that there is no other evidence in the record to suggest otherwise, the
Panel finds that Respondent is not commonly known by the <budweisertv.com> domain name or any variation thereof
pursuant to Policy ¶ 4(c)(ii). See Wells Fargo
& Co. v. Onlyne Corp. Services11, Inc.,
FA 198969 (Nat. Arb. Forum Nov. 17, 2003) (“Given the WHOIS contact information
for the disputed domain [name], one can infer that Respondent, Onlyne Corporate
Services11, is not commonly known by the name ‘welsfargo’ in any derivation.”);
see also Am. Online, Inc. v. World Photo Video & Imaging Corp., FA
109031 (Nat. Arb. Forum May 13, 2002) (finding that the respondent was not
commonly known by <aolcamera.com> or <aolcameras.com> because the
respondent was doing business as “Sunset Camera” and “World Photo Video &
Imaging Corp.”).
Complainant further asserts that Respondent has not used the
disputed domain in connection with a bona
fide offering of goods or services or for a legitimate noncommercial or
fair use. In fact, the disputed domain
name has never resolved to any content.
Respondent has not come forward with any evidence to suggest that it has
made any demonstrable preparations to utilize the disputed domain name in
connection with a bona fide offering
of goods or services pursuant to Policy ¶ 4(c)(i) or for a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). Accordingly, the Panel finds that Respondent
has not shown any demonstrable preparations to use the disputed domain name in
connection with a bona fide offering
of goods or services or for a legitimate noncommercial or fair use. See
AT&T Corp. v. Domains by Brian Evans, D2000-0790 (WIPO Sept. 27, 2000)
(finding no rights or legitimate interests where the respondent did not provide
any documentation on the existence of its alleged company that might show what
the company’s business was, or how the company’s years of existence, if it ever
existed, might mesh with the complainant’s trademark claims); see also S. Co. v. Doms, D2000-0184
(WIPO May 8, 2000) (“While Respondent’s June 14, 1999, e-mail message makes
reference to its ‘global long-term development and communication plans,’ there
is no evidence in the record to support a determination of Respondent’s 'use
of, or demonstrable preparations to use,' the domain name, within the meaning
of [Paragraph 4(c)(i)] of the Policy.”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Complainant contends that Respondent registered the disputed
domain name in bad faith shortly after Complainant’s announcement of its
upcoming “BUDTV” advertising campaign.
Respondent’s registration of the disputed domain name that incorporated
Complainant’s widely recognized BUDWEISER mark as an extension of Complainant’s
upcoming “BUDTV” advertising campaign suggests that Respondent
opportunistically registered the confusingly similar domain name for the
purpose of trading off of Complainant’s good will associated with the mark or
to resell the domain name to Complainant.
The Panel, in viewing the totality of the circumstances surrounding
Respondent’s registration and use of the disputed domain name, finds Respondent’s
activities to amount to bad faith pursuant to Policy ¶ 4(a)(iii). See Sota
v. Waldron, D2001-0351 (WIPO June 18, 2001) (finding that the respondent’s
registration of the <seveballesterostrophy.com> domain name at the time
of the announcement of the Seve Ballesteros Trophy golf tournament “strongly
indicates an opportunistic registration”); see also Reuters Ltd. v. Teletrust IPR Ltd., D2000-0471 (WIPO Sept. 8, 2000)
(finding that the respondent demonstrated bad faith where the respondent was
aware of the complainant’s famous mark when registering the domain name as well
as aware of the deception and confusion that would inevitably follow if he used
the domain names).
The Panel finds that
Policy ¶ 4(a)(iii) has been satisfied.
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <budweisertv.com> domain name be TRANSFERRED from Respondent to Complainant.
Judge Harold Kalina (Ret.), Panelist
Dated: October 9, 2006
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