Anheuser-Busch, Incorporated
v. Josh VonFeldt
Claim Number: FA0709001079503
PARTIES
Complainant is Anheuser-Busch, Incorporated (“Complainant”), represented by Paul
D. McGrady, of Greenberg Traurig, LLP, 77 West Wacker
Drive, Suite 2500, Chicago, IL 60601.
Respondent is Josh VonFeldt (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <trybud.com>, registered with Godaddy.com,
Inc.
PANEL
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.
Terry F. Peppard as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on September 14, 2007; the
National Arbitration Forum received a hard copy of the Complaint on September 18, 2007.
On September 17, 2007, Godaddy.com, Inc. confirmed by e-mail to the
National Arbitration Forum that the <trybud.com> domain name is
registered with Godaddy.com, Inc. and
that the Respondent is the current registrant of the name. Godaddy.com,
Inc. has verified that Respondent is bound by the Godaddy.com, 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 September 20, 2007, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of October 10, 2007 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@trybud.com by e-mail.
A timely Response was received on October
10, 2007. The Response was
deficient under ICANN Rule 5 as it was received in electronic form only.
On October 17, 2007, 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.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from Respondent
to Complainant.
PARTIES’ CONTENTIONS
A. Complainant
Complainant contends, among other things, that:
Complainant is the leading American brewer of beer, including Budweiser
beer, also known by the mark BUD.
Complainant holds trademarks for the BUD mark with the United States Patent and Trademark Office (“USPTO”), including Reg. No. 666,367, issued August 26, 1958, and Reg. No. 1,401,344, issued July 15, 1986.
The offending domain name incorporates Complainant’s mark in its
entirety and merely adds the generic prefix “try.”
The disputed domain name is confusingly similar to Complainant’s mark.
Respondent’s use of Complainant’s mark is unauthorized.
Respondent has no rights to or legitimate interests in the domain name.
Respondent has never operated any bona
fide or legitimate business under the offending domain name.
Respondent uses the disputed domain to drive Internet traffic to its
commercial website, where it advertises goods and services competing with the
business of Complainant.
Respondent had at least constructive notice of Complainant’s rights to
its mark when it registered the disputed domain name.
Respondent has offered to sell the disputed domain name to Complainant
at a price in excess of its out-of-pocket costs of acquisition of the domain.
Respondent has listed the domain name for sale to the general public.
Respondent registered and uses the disputed domain name in bad faith.
B. Respondent
Respondent contends, among other things, as follows:
Respondent consents to the transfer of the
domain name to the Complainant. In light of the above, Respondent requests that
the Panel forgo the usual UDRP analysis of the three issues set out in the
Complaint and simply make an order for the transfer of the domain name to
Complainant.
DISCUSSION
Paragraph 4(a) of the Policy requires that, in the ordinary course,
Complainant must prove each of the following to obtain from a Panel an order
that a domain name be transferred:
i.
the
domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights;
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.
Notwithstanding the foregoing, Paragraph 15(a) of
the Rules for Uniform Domain Name Dispute Resolution Policy (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.”
Further, Policy ¶ 3(a) provides for
the transfer of a domain name registration upon the written instructions of the
parties to a UDRP proceeding without the need for otherwise required findings
and conclusions (see Malev Hungarian
Airlines, Ltd. v. Vertical Axis Inc., FA 212653 (Nat. Ar. Forum
DECISION
Respondent does not contest the material allegations of the Complaint,
and the parties have effectively agreed in writing to a transfer of the subject
domain name from Respondent to Complainant without the need for further
proceedings.
It is therefore Ordered that the <trybud.com>
domain name be TRANSFERRED forthwith
from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: October 25, 2007
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