Anheuser - Busch,
Incorporated v. Innovation Interactive
Claim Number: FA0802001152422
PARTIES
Complainant is Anheuser - Busch, Incorporated (“Complainant”), represented by Paul
D. McGrady, of Greenberg Traurig, LLP, Illinois, USA. Respondent is Innovation Interactive (“Respondent”), represented by Richard
Mass,
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <budwiser.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.
Dr. Reinhard Schanda as Panelist.
PROCEDURAL HISTORY
Complainant submitted a Complaint to the National Arbitration Forum
electronically on February 19, 2008; the
National Arbitration Forum received a hard copy of the Complaint on February 20, 2008.
On February 19, 2008, Godaddy.com, Inc. confirmed by e-mail to the
National Arbitration Forum that the <budwiser.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 February 29, 2008, a
Notification of Complaint and Commencement of Administrative Proceeding (the
“Commencement Notification”), setting a deadline of March 20, 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@budwiser.com by e-mail.
Respondent submitted a Response to the National Arbitration Forum in
electronic form in a timely manner; however, the National Arbitration Forum did
not receive the hard copy of this Response within the Response deadline.
On March 27, 2008, pursuant to Complainant’s
request to have the dispute decided by a single-member Panel, the National
Arbitration Forum appointed Dr. Reinhard Schanda as Panelist.
RELIEF SOUGHT
Complainant requests that the domain name be transferred from
Respondent to Complainant.
PARTIES’ CONTENTIONS
Complainant contends that it is the owner of
numerous trademarks and service marks, all of which consist of the element
BUDWEISER. Most of the BUDWEISER marks cover beer. The balance of the BUDWEISER
marks cover related goods and services; for example, "shirts" or
"guided tours of a brewery." In this regard Complainant points out
the U.S. Reg. No. 922,481 registered October 19, 1971 for the BUDWEISER mark
covering "beer" and claiming a first use date of January 1876.
Complainant further contends that it is the
leading American brewer holding nearly 50 percent of the
Europe and
Complainant is a Fortune 500 company and its
revenues in 2006 were in excess of $15.7 billion. Complainant is also a major
sponsor of worldwide sporting and entertainment events and its television
commercials are seen worldwide. The exclusivity of the famous BUDWEISER mark is
protected under
Due to the extensive use and registration of the
BUDWEISER marks around the world dating back over 130 years, the venerable
BUDWEISER marks have become famous under the laws of the
Complainant contends that the domain name at
dispute incorporates Complainant’s BUDWEISER marks in their entirety, with only
the deletion of an "e." According to Complainant such minor
alterations do nothing to distinguish a domain name from a mark.
Furthermore, Respondent has no trademark or other
intellectual property rights to the domain name. Respondent is not commonly
known as <budwiser.com>. In
addition Respondent has no trademark applications or registrations known to
Complainant that incorporate the element "budwiser." Respondent's use
of the BUDWEISER marks is unauthorized. Respondent has never operated any bona fide or legitimate business under
the domain name at dispute, and is not making a protected non-commercial or fair
use of the offending Domain. Respondent uses the offending Domain to drive
Internet traffic to a commercial website where it advertises competing goods.
Complainant has not granted Respondent any license, permission, or
authorization by which it could own or use any domain name registrations which
are confusingly similar to any of Complainant's marks.
Finally Complainant contends that Respondent’s
address is in the
Further, the “front page” to which the domain name
at dispute resolves clearly shows that the Respondent itself recognizes the
confusing similarity of "budwiser" to the BUDWEISER marks, since
Respondent has used the domain name to advertise identical and competing goods.
Given the fame of Complainant’s BUDWEISER marks, and the fact that Respondent's
domain name was used to redirect consumers to a website advertising directly
competing goods, there is no question that Respondent knew of Complainant's
rights in the BUDWEISER marks when he registered the domain name.
The mere fact that Respondent has registered a
domain which incorporates the famous trademark of a well-known manufacturer is
alone sufficient to give rise to an inference of bad faith.
Respondent's <budwiser.com>
domain name is a classic example of typosquatting and is evidence of bad
faith registration and use pursuant to Policy ¶ 4(a)(iii).
Even if Respondent argues that Respondent was
somehow unaware of Complainant's rights in the relevant marks, had Respondent
conducted even a preliminary trademark search, it would have found
Complainant's various trademark registrations in Complainant's marks and the
websites associated with the marks, and numerous additional references in
commerce, on the Internet, and in publications, evidencing Complainant's use of
its marks in connection with the Complainant's goods and services.
Through the commercial use of the offending Domain
in the United States and other jurisdictions in which Complainant has trademark
rights in its BUDWEISER marks, Respondent intentionally attempts to attract
Complainant's customers to the Respondent's website for financial gain by
creating a likelihood of confusion with the Complainant's BUDWEISER marks as to
the source, sponsorship, affiliation, and/or endorsement of the Respondent's
website or location.
Respondent's conduct is squarely within the
illustrations of bad faith set forth in Paragraph (4)(b)
of the UDRP Policy. The above activities constitute bad faith and unfair
attempts to capitalize on the fame and reputation for superior quality associated
with the BUDWEISER marks in order to generate a windfall at the expense of
Complainant through free riding on the BUDWEISER marks.
In its Response Respondent contends basically that it consents to the
transfer of the domain name to Complainant.
Furthermore 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.
FINDINGS AND DISCUSSION
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.”
Although Respondent has provided a Response that
was deficient because a hard copy of the Response was not received before the
Response deadline, the Panel decides to consider Respondent’s submission. See Strum v. Nordic Net
Preliminary Issue: Consent to Transfer the
Subject Domain Name
Respondent does not contest any
of Complainant’s allegations regarding the <budwiser.com> domain
name. Rather, Respondent’s
Response explicitly states: “Respondent consents to the transfer of the domain
name to the Complainant. In light of the
above, Respondent requests that the Panel forego 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.”
Respondent cites the following cases in support of its position: Boehringer
Ingelheim Int’l GmbH v. Modern Ltd. – Cayman Web Dev., FA 133625 (Nat. Arb.
Forum Jan. 9, 2003) (transferring the domain name registration where the
respondent stipulated to the transfer); see also Malev Hungarian Airlines,
Ltd. v. Vertical Axis Inc., FA 212653 (Nat Arb. Forum Jan. 13, 2004) (“In
this case, the parties have both asked for the domain name to be transferred to
the Complainant . . . Since the requests of the parties in this case are
identical, the Panel has no scope to do anything other than to recognize the common
request, and it has no mandate to make findings of fact or of compliance (or
not) with the Policy.”). Thus, the Panel
decides to honor Respondent’s request and to issue a decision ordering the
immediate transfer of the <budwiser.com> domain
name to Complainant.
DECISION
Having established and determined that the requests of the parties in
this case are identical, in that Respondent does not contest Complainant’s
remedy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <budwiser.com> domain name be TRANSFERRED
from Respondent to Complainant.
Dr. Reinhard Schanda,
Panelist
Dated: April 9, 2008
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