Anheuser - Bush, Incorporated v. DreamHost Web Hosting
Claim Number: FA0803001158616
Complainant is Anheuser - Busch, Incorporated (“Complainant”), represented by Paul
D. McGrady, of Greenberg Traurig, LLP, Illinois, USA. Respondent is DreamHost Web Hosting (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <missbudweiser.com>, registered with New Dream Network, LLC.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On March 7, 2008, New Dream Network, LLC confirmed by e-mail to the National Arbitration Forum that the <missbudweiser.com> domain name is registered with New Dream Network, LLC and that Respondent is the current registrant of the name. New Dream Network, LLC has verified that Respondent is bound by the New Dream Network, LLC 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 March 20, 2008, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of April 9, 2008 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 firstname.lastname@example.org by e-mail.
Having received no response from Respondent by the deadline, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default. Subsequently, Respondent sent a deficient response, in that it was late and not in hard copy, and therefore was not considered by the Panel.
Complainant sent a timely Additional
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 <missbudweiser.com> domain name is confusingly similar to Complainant’s BUDWEISER mark.
2. Respondent does not have any rights or legitimate interests in the <missbudweiser.com> domain name.
3. Respondent registered and used the <missbudweiser.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
C. Complainant’s Additional Submission was primarily in opposition to Respondent’s response, which was deficient and therefore not considered by the Panel.
Complainant, Anheuser-Bush, Incorporated, is a leading American brewer of the world’s largest-selling beer. Complainant is a Fortune 500 company, and had over $15 million in revenue in 2007. Complainant holds numerous trademark registrations with the United States Patent and Trademark Office (“USPTO”) in the BUDWEISER mark (Reg. No. 922,481 issued Oct. 19, 1971).
Respondent registered the disputed domain name on
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 registered the BUDWEISER mark with the USPTO, and therefore, established rights to the mark pursuant to Policy ¶ 4(a)(i). See Enter. Rent-a-Car Co. v. BGSvetionik, FA 925273 (Nat. Arb. Forum Apr. 11, 2007) (finding that the complainant’s timely registration with the USPTO and “subsequent use of the ENTERPRISE mark for over 20 years sufficiently establishes its rights in the mark pursuant to Policy ¶ 4(a)(i).”); see also Expedia, Inc. v. Emmerson, FA 873346 (Nat. Arb. Forum Feb. 9, 2007) (“Complainant’s trademark registrations with the USPTO adequately demonstrate its rights in the [EXPEDIA] mark pursuant to Policy ¶ 4(a)(i).”).
The disputed domain name contains the BUDWEISER mark in its entirety with the addition of the generic term “miss,” and the generic top-level domain (“gTLD”) “.com.” The Panel finds that such additions do nothing to distinguish the disputed domain name from Complainant’s mark. See Oki Data Ams., Inc. v. ASD, Inc., D2001-0903 (WIPO Nov. 6, 2001) (“[T]he fact that a domain name wholly incorporates a Complainant’s registered mark is sufficient to establish identity [sic] or confusing similarity for purposes of the Policy despite the addition of other words to such marks”); see also Rollerblade, Inc. v. McCrady, D2000-0429 (WIPO June 25, 2000) (finding that the top level of the domain name such as “.net” or “.com” does not affect the domain name for the purpose of determining whether it is identical or confusingly similar).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant claims that Respondent has neither rights nor
legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). Complainant has the initial burden of showing
that Respondent does not have rights or legitimate interests in the disputed
domain name. Once Complainant has made a
prima facie case showing that
Respondent lacks rights and legitimate interests, the burden shifts to
Respondent to show that it does have rights or legitimate interests in the <missbudweiser.com>
domain name. The Panel finds that
Complainant has met the initial burden of showing that Respondent lacks rights
and legitimate interests, and therefore has made a prima facie case under Policy ¶ 4(a)(ii). See Compagnie Generale des Matieres Nucleaires
v. Greenpeace Int’l, D2001-0376 (WIPO
Because Respondent failed to answer the Complaint, the Panel presumes that Respondent lacks all rights and legitimate interests in the disputed domain name. See Am. Express Co. v. Fang Suhendro, FA 129120 (Nat. Arb. Forum Dec. 30, 2002) (“[B]ased on Respondent's failure to respond, it is presumed that Respondent lacks all rights and legitimate interests in the disputed domain name.”); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). Nevertheless, the Panel will examine all evidence in the record to determine if Respondent does have rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant asserts that Respondent has never been
authorized to use the BUDWEISER mark, and that Respondent is not and has never
been commonly known by the disputed domain name. Further, the WHOIS information does not
indicate that Respondent is commonly known by the disputed domain name. Thus, the Panel finds that Respondent is not
commonly known by the <missbudweiser.com> domain name pursuant to
Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi,
FA 139720 (Nat. Arb. Forum
Respondent is using the <missbudweiser.com> domain name to redirect Internet traffic to a website that advertises the services of a software company named Joomla. The Panel finds that Respondent’s use of the disputed domain name to redirect Internet users is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii). See Imation Corp. v. Streut, FA 125759 (Nat. Arb. Forum Nov. 8, 2002) (finding no rights or legitimate interest where the respondent used the disputed domain name to redirect Internet users to an online casino); see also Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb. Forum Sept. 30, 2003) (“Respondent's demonstrated intent to divert Internet users seeking Complainant's website to a website of Respondent and for Respondent's benefit is not a bona fide offering of goods or services under Policy ¶ 4(c)(i) and it is not a legitimate noncommercial or fair use under Policy ¶ 4(c)(iii).”).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the
<missbudweiser.com> domain name for commercial gain by
redirecting Internet users to Respondent’s website, and benefiting from the
likely confusion between Complainant’s mark and the disputed domain name. The Panel finds that the similarity between
the disputed domain name and the BUDWEISER mark are likely to create confusion
as to Complainant’s source, sponsorship, affiliation, or endorsement of the
website that resolves from the disputed domain name in violation of Policy ¶
4(b)(iv). See Bank of Am. Corp. v.
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 <missbudweiser.com> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: April 28, 2008
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