Anheuser-Busch, Incorporated v. Pete Wofford
Claim Number: FA0709001076726
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 Pete Wofford (“Respondent”), 192 South Finlay,
REGISTRAR AND DISPUTED DOMAIN
NAMES
The domain names at issue are <budweiserclan.com>, <budweisergaming.com>, and <budweisergaming.net>, registered with Godaddy.com, 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.
Tyrus R. Atkinson, Jr., as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on September 13, 2007; the National Arbitration Forum received a hard copy of the Complaint on October 22, 2007.
On October 22, 2007, Godaddy.com, Inc. confirmed by e-mail to the National Arbitration Forum that the <budweiserclan.com>, <budweisergaming.com>, and <budweisergaming.net> domain names are registered with Godaddy.com, Inc. and that Respondent is the current registrant of the names. 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 October 24, 2007, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of November 13, 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@budweiserclan.com, postmaster@budweisergaming.com, and postmaster@budweisergaming.net by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On November 15, 2007, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Tyrus R. Atkinson, Jr., as Panelist.
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 names be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <budweiserclan.com>, <budweisergaming.com>, and <budweisergaming.net> domain names are confusingly similar to Complainant’s BUDWEISER mark.
2. Respondent does not have any rights or legitimate interests in the <budweiserclan.com>, <budweisergaming.com>, and <budweisergaming.net> domain names.
3. Respondent registered and used the <budweiserclan.com>, <budweisergaming.com>, and <budweisergaming.net> domain names in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Anheuser-Busch, Inc.,
is the leading American brewer, holding nearly 50 percent of the
Respondent, Pete Wofford, registered the <budweiserclan.com> domain name on July 22, 2007, and both the <budweisergaming.com> and <budweisergaming.net> domain names on August 27, 2007. Respondent uses the disputed domain names to redirect Internet users to his website located at the <americansclan> domain name, and has offered the <budweiserclan.com> domain name for sale to the Complainant.
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 has therefore established rights to the mark pursuant to Policy ¶ 4(a)(i). 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 Innomed
Techs., Inc. v. DRP Servs., FA 221171 (Nat. Arb. Forum Feb. 18, 2004) (“Registration
of the NASAL-AIRE mark with the USPTO establishes Complainant's rights in the mark.”).
Respondent’s <budweiserclan.com>, <budweisergaming.com>,
and <budweisergaming.net> domain names are confusingly
similar to Complainant’s mark under Policy ¶ 4(a)(i) because
they incorporate Complainant’s entire mark.
Respondent’s addition of the generic terms “clan” and “gaming” to
Complainant’s BUDWEISER mark do not sufficiently distinguish Respondent’s
disputed domain names from Complainant’s mark.
Further, all registered domain names are required to have a top-level
domain; therefore, Respondent’s use of the generic top-level domains (“gTLDs”)
“.com” and “.net” do not distinguish Respondent’s disputed domain names from
Complainant’s mark. See Pomellato S.p.A v. Tonetti,
D2000-0493 (WIPO July 7, 2000) (finding <pomellato.com> identical to the
complainant’s mark because the generic top-level domain (gTLD) “.com” after the
name POMELLATO is not relevant); see also
Arthur Guinness Son & Co. (
The Panel finds that Policy ¶ 4(a)(i)
has been satisfied.
Complainant asserts that Respondent has no rights or legitimate interests in the disputed domain names. Complainant has the initial burden of showing that Respondent lacks all rights and legitimate interests in the disputed domain names. Once Complainant has made a prima facie case by establishing that Respondent has neither rights nor legitimate interests in the disputed domain names, the burden shifts to Respondent to show that it does have rights or legitimate interests in the disputed domain names. The Panel finds that Complainant has met the initial burden and made a prima facie case showing that Respondent lacks rights and legitimate interests under Policy ¶ 4(a)(ii). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that once the complainant asserts that the respondent has no rights or legitimate interests with respect to the domain, the burden shifts to the respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“Proving that the Respondent has no rights or legitimate interests in respect of the Domain Name requires the Complainant to prove a negative. For the purposes of this sub paragraph, however, it is sufficient for the Complainant to show a prima facie case and the burden of proof is then shifted on to the shoulders of Respondent. In those circumstances, the common approach is for respondents to seek to bring themselves within one of the examples of paragraph 4(c) or put forward some other reason why they can fairly be said to have a relevant right or legitimate interests in respect of the domain name in question.”).
The Panel presumes that Respondent lacks rights and
legitimate interests in the disputed domain names because Respondent failed to
respond to the Complaint. See Am. Online, Inc. v. AOL Int'l,
D2000-0654 (WIPO Aug. 21, 2000) (finding no rights or legitimate interests
where the respondent fails to respond); see
also Bank of Am. Corp. v.
McCall, FA 135012 (Nat. Arb. Forum Dec.
31, 2002) (“Respondent's failure to respond not only results in its failure to
meet its burden, but also will be viewed as evidence itself that Respondent
lacks rights and legitimate interests in the disputed domain name.”). Despite Respondent’s failure to respond, the
Panel will examine all evidence in the record to determine if Respondent has
rights or legitimate interests in the disputed domain names under Policy ¶ 4(c).
Complainant contends that Respondent is not and has never been commonly known by the disputed domain names, and is not authorized to use the BUDWEISER mark. Additionally, the WHOIS information identifies Respondent as “Pete Wofford,” and therefore does not indicate that Respondent has been or is commonly known by the <budweiserclan.com>, <budweisergaming.com>, or <budweisergaming.net> domain names. Therefore, the Panel concludes that Respondent is not commonly known by the disputed domain names pursuant to Policy ¶ 4(c)(ii). See Tercent Inc. v. Lee Yi, FA 139720 (Nat. Arb. Forum Feb. 10, 2003) (stating “nothing in Respondent’s WHOIS information implies that Respondent is ‘commonly known by’ the disputed domain name” as one factor in determining that Policy ¶ 4(c)(ii) does not apply); see also Am. W. Airlines, Inc. v. Paik, FA 206396 (Nat. Arb. Forum Dec. 22, 2003) (“Respondent has registered the domain name under the name ‘Ilyoup Paik a/k/a David Sanders.’ Given the WHOIS domain name registration information, Respondent is not commonly known by the [<awvacations.com>] domain name.”).
In addition, the Panel finds that Respondent is not using
the disputed domain names for a legitimate noncommercial or fair use under
Policy ¶ 4(c)(iii) or in connection with a bona fide offering of goods or services
under Policy ¶ 4(c)(i). Respondent is
using the disputed domain names to redirect Internet users to the
<americansclan.com> domain name presumably for Respondent’s own
commercial gain. See 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).”); see also Am. Online, Inc. v. Advanced Membership
Servs., Inc., FA 180703 (Nat. Arb. Forum Sept. 26, 2003)
(“Respondent's registration and use of the <gayaol.com> domain name with
the intent to divert Internet users to Respondent's website suggests that
Respondent has no rights to or legitimate interests in the disputed domain name
pursuant to Policy Paragraph 4(a)(ii).”).
Moreover, Respondent offered to sell the <budweiserclan.com> domain name to Complainant, which further demonstrates Respondent’s lack of rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii). See Am. Nat’l Red Cross v. Domains, FA 143684 (Nat. Arb. Forum Mar. 4, 2003) (“Respondent’s lack of rights and legitimate interests in the domain name is further evidenced by Respondent’s attempt to sell its domain name registration to Complainant, the rightful holder of the RED CROSS mark.”); see also Am. Int’l Group, Inc. v. Dobson, FA 146568 (Nat. Arb. Forum Apr. 8, 2003) (finding evidence that the respondent lacked rights or legitimate interests in the disputed domain name after it sent several correspondences offering to sell its rights in the domain name in exchange for 1,500 shares of the complainant’s stock to the complainant).
The Panel finds that Policy ¶ 4(a)(ii)
has been satisfied.
Respondent uses the disputed domain name to redirect
Internet users to the <americansclan> website. Complainant asserts that Respondent is
commercially benefiting from the likely confusion between Complainant’s mark
and Respondent’s disputed domain names. In
addition, at Respondent’s <americansclan> website, Respondent uses
Complainant’s mark. Such use of the
disputed domain names is capable of creating confusion as to Complainant’s
source, sponsorship, affiliation, or endorsement of Respondent’s domain name
and resulting website. The Panel finds
this to be 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 the respondent directed Internet users seeking the complainant’s
site to its own website for commercial gain); see also 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.”).
The Panel finds Respondent’s offer
to sell the <budweiserclan.com> domain name to Complainant to be further evidence of
registration and use in bad faith under Policy ¶ 4(b)(i). See Bank of Am. Corp. v. Nw. Free Cmty. Access, FA 180704 (Nat. Arb.
Forum Sept. 30, 2003) (“Respondent's general offer of the disputed domain name
registration for sale establishes that the domain name was registered in bad
faith under Policy ¶ 4(b)(i).”); see also Banca
Popolare Friuladria S.p.A. v. Zago, D2000-0793 (WIPO Sept. 3, 2000)
(finding bad faith where the respondent offered the domain names for sale).
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 <budweiserclan.com>, <budweisergaming.com>, and <budweisergaming.net> domain names be TRANSFERRED from Respondent to Complainant.
Tyrus R. Atkinson, Jr., Panelist
Dated: November 28, 2007
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