Anheuser-Busch, Incorporated v. Josh VonFeldt
Claim Number: FA0709001079503
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.
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.
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 email@example.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.
Complainant requests that the domain name be transferred from Respondent to 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.
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.
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
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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