Anheuser-Busch, Incorporated v. Jason Keeshan
Claim Number: FA0602000648194
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 Jason Keeshan (“Respondent”), 4164 Texas Ave., Grand Island, NE 68803.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <michelobultraamber.com>, registered with Go Daddy Software, 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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on February 17, 2006; the National Arbitration Forum received a hard copy of the Complaint on February 21, 2006.
On February 17, 2006, Go Daddy Software, Inc. confirmed by e-mail to the National Arbitration Forum that the <michelobultraamber.com> domain name is registered with Go Daddy Software, Inc. and that Respondent is the current registrant of the name. Go Daddy Software, Inc. has verified that Respondent is bound by the Go Daddy Software, 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 February 21, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of March 13, 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@michelobultraamber.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On March 20, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant is a leading beer brewing and distributing company selling its products in more than eighty countries worldwide.
Complainant markets its products under various brands and owns numerous marks in connection with these products, including the MICHELOB ULTRA mark, which has been registered with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 2,739,187 issued July 15, 2003).
Respondent registered the <michelobultraamber.com> domain name on January 12, 2006.
Respondent’s domain name resolves to a website featuring links to various unrelated commercial websites.
Respondent’s <michelobultraamber.com> domain name is confusingly similar to Complainant’s MICHELOB ULTRA mark.
Respondent has never been commonly known by the disputed domain name.
Complainant has not granted to Respondent any license, permission or authorization to use Complainant’s mark in a domain name.
Respondent does not have any rights or legitimate interests in the domain name <michelobultraamber.com>.
Respondent has registered and is using the <michelobultraamber.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is confusingly similar to a trademark 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 was registered and is being used by Respondent 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."
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:
i. the domain name registered by Respondent is identical or confusingly similar to a trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
It is undisputed that Complainant has established rights in the MICHELOB ULTRA mark through registration with the USPTO. See 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.”). See also Men’s Wearhouse, Inc. v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark law, registered marks hold a presumption that they are inherently distinctive [or] have acquired secondary meaning”)
Complainant contends that Respondent’s <michelobultraamber.com> domain name is confusingly similar to Complainant’s mark. Respondent’s disputed domain name features Complainant’s entire MICHELOB ULTRA mark and adds the generic term “amber,” a term with a direct relationship to the products that Complainant provides. The Panel finds that the addition of generic terms, especially, as here, those with a direct connection to the business in which Complainant engages, is insufficient to properly distinguish Respondent’s domain name from Complainant’s mark pursuant to Policy ¶ 4(a)(i). See Space Imaging LLC v. Brownell, AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where a respondent’s domain name combines a complainant’s mark with a generic term that has an obvious relationship to the complainant’s business); see also Marriott Int’l, Inc. v. Café au lait, FA 93670, (Nat. Arb. Forum Mar. 13, 2000) (finding that the respondent’s domain name <marriott-hotel.com> is confusingly similar to the complainant’s MARRIOTT mark).
The Panel therefore finds that Policy ¶ 4(a)(i) has been
satisfied.
Complainant alleges that Respondent does not have rights or legitimate interests in the <michelobultraamber.com> domain name. Once Complainant makes a prima facie showing in support of its allegations, the burden shifts to Respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Respondent’s failure to respond to the Complaint presents a rebuttable presumption that Respondent lacks rights or legitimate interests in the disputed domain name. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (holding that, where a complainant has asserted that a respondent does not have rights or legitimate interests with respect to a domain name, it is incumbent on the respondent to come forward with evidence rebutting this assertion because this information is “uniquely within the knowledge and control of the respondent”); see also Clerical Med. Inv. Group Ltd. v. Clericalmedical.com, D2000-1228 (WIPO Nov. 28, 2000) (finding that, in appropriate circumstances, the mere assertion by a complainant that a respondent does not have rights or legitimate interests is sufficient to shift the burden of proof to the respondent to demonstrate that such a right or legitimate interest exists). However, the Panel may nonetheless consider whether the evidence supports rights or legitimate interests under Policy ¶ 4(c).
Accordingly, we note that Complainant contends, without contradiction from Respondent, that Respondent uses the confusingly similar <michelobultraamber.com> domain name to operate a website featuring links to various unrelated commercial websites from which Respondent presumably receives referral fees. The Panel finds that such use is neither a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) nor a legitimate non-commercial or fair use pursuant to Policy ¶ 4(c)(iii). See, e.g., Golden Bear Int’l, Inc. v. Kangdeock-ho, FA 190644 (Nat. Arb. Forum Oct. 17, 2003) (“Respondent's use of a domain name confusingly similar to Complainant’s mark to divert Internet users to websites unrelated to Complainant's business does not represent a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”). See also Black & Decker Corp. v. Clinical Evaluations, FA 112629 (Nat. Arb. Forum June 24, 2002) (holding that a respondent’s use of a disputed domain name to redirect Internet users to commercial websites unrelated to the complainant and presumably with the purpose of earning a commission or pay-per-click referral fee did not evidence rights or legitimate interests in the domain name).
Furthermore, Complainant contends, and Respondent does not deny, that Respondent is neither commonly known by the <michelobultraamber.com> domain name nor licensed to register domain names featuring Complainant’s mark or any variation thereof. The Panel finds that, in the absence of evidence suggesting otherwise, Respondent is not commonly known by the disputed domain name for purposes of Policy ¶ 4(c)(ii). See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding no rights or legitimate interests where (1) a respondent is not a licensee of a complainant; (2) the complainant’s prior rights in the domain name precede the respondent’s registration; (3) the respondent is not commonly known by the domain name in question); see also Compagnie de Saint Gobain v. Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or legitimate interest where a respondent was not commonly known by the mark and never applied for a license or permission from a complainant to use the trademarked name).
For these reasons, the Panel finds
that Policy ¶ 4(a)(ii) has been satisfied.
From the uncontested evidence offered by Complainant, the
Panel finds that there is likely to be confusion
among Internet users as to Complainant’s affiliation with or sponsorship of the
websites to which the disputed domain name resolves. See Am. Univ. v. Cook, FA 208629 (Nat. Arb. Forum Dec. 22,
2003) (“Registration and use of a domain name that incorporates another's mark
with the intent to deceive Internet users in regard to the source or
affiliation of the domain name is evidence of bad faith.”). See also TM
Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003):
Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be misled to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.
Furthermore, Respondent’s
use of the <michelobultraamber.com> domain name to operate a
website featuring links to various commercial websites, presumably for
Respondent’s commercial gain, is evidence of bad faith registration and use
pursuant to Policy ¶ 4(b)(iv). See Drs.
Foster & Smith, Inc. v. Lalli, FA 95284 (Nat. Arb. Forum Aug. 21, 2000)
(finding bad faith where a respondent directed Internet users seeking a
complainant’s site to its own website for commercial gain); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003):
Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’
Finally under this head, it is evident that Respondent
registered the contested domain name with either actual or constructive
knowledge of Complainant’s rights in the MICHELOB ULTRA mark by virtue of
Complainant’s prior registration of that mark with the United States Patent and
Trademark Office. Registration of a
confusingly similar domain name despite such actual or constructive knowledge
evidences bad faith registration and use of the domain name pursuant to Policy
¶ 4(a)(iii). See Digi Int’l v. DDI Sys.,
FA 124506 (Nat. Arb. Forum Oct. 24, 2002); see also Orange Glo Int’l v. Blume, FA
118313 (Nat. Arb. Forum Oct. 4, 2002).
The Panel thus finds that Policy ¶ 4(a)(iii) has been satisfied.
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that relief must be, and it is, hereby, GRANTED.
Accordingly, it is Ordered that the <michelobultraamber.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: March 31, 2006
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