Anheuser - Busch, Incorporated v. Whitney VanCleave
Claim Number: FA0805001195951
Complainant is Anheuser - Busch, Incorporated (“Complainant”), represented by Paul
D. McGrady, of Greenberg Traurig, LLP, Illinois, USA.
Respondent is Whitney VanCleave (“Respondent”),
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <budweiserchallenge.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.
Louis E. Condon as Panelist.
Complainant submitted a Complaint to
the National Arbitration Forum electronically on
On
On June
4, 2008, a Notification of Complaint and Commencement of Administrative
Proceeding (the "Commencement Notification"), setting a deadline of
June 24, 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 postmaster@budweiserchallenge.com
by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On
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 <budweiserchallenge.com> domain name is confusingly similar to Complainant’s BUDWEISER mark.
2. Respondent does not have any rights or legitimate interests in the <budweiserchallenge.com> domain name.
3. Respondent registered and used the <budweiserchallenge.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant has registered the BUDWEISER mark with the United States Patent and Trademark Office (“USPTO”) for beer and related products. (Reg. No. 922,481 issued October 19, 1971).
Respondent’s <budweiserchallenge.com>
domain name was registered on
Additionally, an e-mail was sent to Complainant from the address listed on Respondent’s WHOIS administrative contact information indicating a willingness to sell the disputed domain name to Complainant. Complainant responded by e-mail offering to purchase the disputed domain name for consideration of Respondent’s out-of-pocket costs related to the registration of the <budweiserchallenge.com> domain name. No additional correspondence occurred between the parties.
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 sufficiently established its rights in the
BUDWEISER mark through registration with the USPTO pursuant to Policy ¶
4(a)(i). See
The <budweiserchallenge.com>
domain name contains Complainant’s BUDWEISER mark in its entirety followed by
the generic term “challenge” and the generic top level domain (“gTLD”)
“.com.” The inclusion of a generic word
and a gTLD does not distinguish a disputed domain name. Consequently, the Panel finds that the <budweiserchallenge.com> domain name
is confusingly similar to the BUDWEISER mark pursuant to Policy ¶ 4(a)(i). See Arthur
Guinness Son & Co. (
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(i).
Under a Policy ¶ 4(a)(ii) analysis, Complainant must first
establish a prima facie case that
Respondent has no rights or legitimate interests in the <budweiserchallenge.com> domain
name. See VeriSign Inc. v. VeneSign
No response has been submitted to the Complaint. The Panel therefore may presume that
Respondent has no rights or legitimate interests in the <budweiserchallenge.com> domain name,
but will nonetheless examine the record in light of the elements listed under
Policy ¶ 4(c). See G.D. Searle v. Martin
Mktg., FA 118277 (Nat. Arb. Forum
Nothing in Respondent’s WHOIS information or anything else
in the record indicates that Respondent is or ever was commonly known by the
disputed domain name. Furthermore,
Respondent never sought nor has been granted permission to use the BUDWEISER
mark in any way. Without any additional
evidence, the Panel finds that Respondent is not nor ever was commonly known by
the <budweiserchallenge.com>
domain name pursuant to Policy ¶ 4(c)(ii).
See Braun Corp. v. Loney, FA 699652 (Nat. Arb. Forum July 7,
2006) (concluding that the respondent was not commonly known by the disputed
domain names where the WHOIS information, as well as all other information in
the record, gave no indication that the respondent was commonly known by the
disputed domain names, and the complainant had not authorized the respondent to
register a domain name containing its registered mark); see also G.D. Searle & Co. v.
Cimock, FA 126829 (Nat. Arb. Forum Nov.
13, 2003) (“Due to
the fame of Complainant’s mark there must be strong evidence that Respondent is
commonly known by the disputed domain name in order to find that Respondent has
rights or legitimate interests in the disputed domain name pursuant to Policy ¶
4(c)(ii). However, there is no evidence
on record, and Respondent has not come forward with any proof to establish that
it is commonly known as CELEBREXRX or <celebrexrx.com>.”).
The disputed domain name resolves to a parked website
featuring links and advertisements to various third-parties unrelated to
Complainant. The Panel finds that this
use does not constitute either a bona
fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate
noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See Royal Bank of Scotland Group plc. v. Demand
Domains, FA
714952 (Nat. Arb. Forum Aug. 2, 2006) (finding that the operation of a
commercial web directory displaying various links to third-party websites was
not a use in connection with a bona fide offering of goods or services
pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant
to Policy ¶ 4(c)(iii)); see also Tercent
Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (holding that the
respondent’s use of the disputed domain name to host a series of hyperlinks and
a banner advertisement was neither a bona fide offering of goods or
services nor a legitimate noncommercial or fair use of the domain name).
An e-mail was sent from Respondent’s administrative contact
offering to sell the <budweiserchallenge.com>
domain name to Complainant. The Panel
finds this to be further evidence that Respondent has no rights or legitimate
interest in the disputed domain name pursuant to Policy ¶ 4(a)(ii). See Mothers Against Drunk Driving v.
Hyun-Jun Shin, FA 154098 (Nat. Arb. Forum May 27, 2003) (holding that under
the circumstances, the respondent’s apparent willingness to dispose of its
rights in the disputed domain name suggested that it lacked rights or
legitimate interests in the domain name); see
also Am. Nat’l Red Cross v. Domains,
FA 143684 (Nat. Arb. Forum
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(ii).
Respondent expressed its interest in selling the disputed
domain name to Complainant. The Panel
finds this willingness to part with the disputed domain name to establish
Respondent’s bad faith registration and use of the disputed domain pursuant to
Policy ¶ 4(b)(i). See Bank of Am.
Corp. v. Nw. Free Cmty. Access, FA 180704
(Nat. Arb. Forum
Finally, the disputed domain name resolves to a website
displaying various links and advertisements to third-parties. The Panel presumes that Respondent is
commercially benefiting from these advertisements and that Respondent receives
click-through fees for each Internet users who clicks on one of the
advertisements or links. The Panel finds
this to be further evidence of Respondent’s bad faith registration and use of
the <budweiserchallenge.com>
domain name pursuant to Policy ¶ 4(b)(iv).
See T-Mobile USA, Inc. v. utahhealth, FA 697821 (Nat. Arb. Forum June 7, 2006) (holding that
the registration and use of a domain name confusingly similar to a
complainant’s mark to direct Internet traffic to a commercial “links page” in
order to profit from click-through fees or other revenue sources constitutes
bad faith under Policy ¶ 4(b)(iv)); see
also Constellation Wines
The Panel concludes that Complainant has sufficiently established Policy ¶ 4(a)(iii).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief should be GRANTED.
Accordingly, it is Ordered that the <budweiserchallenge.com> domain name be TRANSFERRED from Respondent to Complainant.
Louis E. Condon, Panelist
Dated: July 8, 2008
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