Anheuser-Busch, Incorporated v. Private Whois Service c/o budweiser-usa.com
Claim Number: FA1007001335010
Complainant is Anheuser-Busch,
Incorporated (“Complainant”), represented by Andrea Anderson, of Holland & Hart LLP,
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <budweiser-usa.com>, registered with Internet.bs Corp.
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.
Bruce E. Meyerson as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on July 13, 2010.
On July 13, 2010, Internet.bs Corp. confirmed by e-mail to the National Arbitration Forum that the <budweiser-usa.com> domain name is registered with Internet.bs Corp. and that Respondent is the current registrant of the name. Internet.bs Corp. has verified that Respondent is bound by the Internet.bs Corp. 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 July 15, 2010, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 4, 2010 by which Respondent could file a Response to the Complaint, via e-mail to all entities and persons listed on Respondent’s registration as technical, administrative, and billing contacts, and to postmaster@budweiser-usa.com by e-mail. Also on July 15, 2010, the Written Notice of the Complaint, notifying Respondent of the email addresses served and the deadline for a Response, was transmitted to Respondent via post and fax, to all entities and persons listed on Respondent’s registration as technical, administrative and billing contacts.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On August 12, 2010, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Bruce E. Meyerson 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 "to employ reasonably available means calculated to achieve actual notice to Respondent" through submission of a Written Notice, as defined in Rule 1. 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 <budweiser-usa.com> domain name is confusingly similar to Complainant’s BUDWEISER mark.
2. Respondent does not have any rights or legitimate interests in the <budweiser-usa.com> domain name.
3. Respondent registered and used the <budweiser-usa.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Anheuser-Busch, Incorporated, operates breweries and creates, markets, and sells beer and related products. Complainant offers its products under its BUDWEISER mark. Complainant holds numerous trademark registrations for its BUDWEISER mark throughout the world, with the:
Oficina de Marques del Prinipat D’Andorra (“OMPA”)
(e.g., Reg. No. 7 issued December 5, 2006)
(e.g., Reg. No. 1,327,228 issued July 14, 1982)
(e.g., Reg. No. 363,165 issued October 24,1979)
Canadian Intellectual Property Office (“CIPO”)
(e.g., Reg. No. TMDA9010 issued August 7, 1903)
(Reg. No. 604,734 issued October 4, 2001)
(e.g., Reg. No. 1,116,907 issued October 7, 1997)
(Reg. No. 92,296,933 issued October 30, 1996)
(Reg. No. VR 1948 01000 issued July 10, 1948)
Ecuadorian Institute of Intellectual Property (“EIIP”)
(e.g., Reg. No. 93 issued November 18, 1919)
National Board of Patents and Registrations of
(e.g., Reg. No. 109,222 issued October 27, 1986)
Irish Patents Office (“IPO”)
(e.g., Reg. No. 177,198 issued August 15, 2000)
Instituto Mexicano de la Propiedad Industrial (“IMPI”)
(e.g., Reg. No. 346,927 issued July 31, 1987)
Ministry of
Industry and Commerce of
(e.g., Reg. No. 31939/2000 issued June 4, 2001)
(e.g., Reg. No. 2,139,488 issued September 22, 2000)
(e.g., Reg. No. 274,192 issued November 28, 1994)
(e.g., Reg. No. 922,481 issued October 19,1971)
World Intellectual Property Office (“WIPO”)
(e.g., Reg. No. 835,837 issued September 30, 2004).
Respondent registered the <budweiser-usa.com> domain name on May 17, 2010. The disputed domain name fails to resolve to an active website. However, Respondent utilizes the disputed domain name to host e-mail addresses that Respondent uses in an Internet phishing scam in which Respondent pretends to be Complainant and offers Internet users jobs as long as the Internet users provide Respondent with personal credit information.
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.
Based on Complainant’s foregoing trademark registrations, the Panel concludes that Complainant has established rights in its BUDWEISER mark under Policy ¶ 4(a)(i). See Honeywell Int’l Inc. v. r9.net, FA 445594 (Nat. Arb. Forum May 23, 2005) (finding the complainant’s numerous registrations for its HONEYWELL mark throughout the world sufficient to establish the complainant’s rights in the mark under the Policy ¶ 4(a)(i)); see also American Int’l Group, Inc. v. Morris, FA 569033 (Nat. Arb. Forum Dec. 6, 2005) (“Complainant has established rights in the AIG mark through registration of the mark with several trademark authorities throughout the world, including the United States Patent and Trademark office (‘USPTO’)”); see also Koninklijke KPN N.V. v. Telepathy Inc., D2001-0217 (WIPO May 7, 2001) (finding that the Policy does not require that the mark be registered in the country in which the respondent operates; therefore it is sufficient that the complainant can demonstrate a mark in some jurisdiction).
Complainant claims that Respondent’s <budweiser-usa.com>
domain name is confusingly similar to Complainant’s BUDWEISER mark under Policy
¶ 4(a)(i). The
disputed domain name combines Complainant’s entire mark with a hyphen, the
geographic term “
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent lacks rights and legitimate interests in the <budweiser-usa.com> domain name. When a complainant makes a prima facie case in support of its allegations, the burden shifts to the respondent to prove that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See Hanna-Barbera Prods., Inc. v. Entm’t Commentaries, FA 741828 (Nat. Arb. Forum Aug. 18, 2006) (holding that the complainant must first make a prima facie case that the respondent lacks rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii) before the burden shifts to the respondent to show that it does have rights or legitimate interests in a domain name). The Panel finds Complainant has made a prima facie case. Due to Respondent’s failure to respond to the Complaint, the Panel may assume that Respondent does not have rights or legitimate interests in the <budweiser-usa.com> domain name. See Vanguard Group, Inc. v. Collazo, FA 349074 (Nat. Arb. Forum Dec. 1, 2004) (finding that because the respondent failed to submit a Response, “Complainant’s submission has gone unopposed and its arguments undisputed. In the absence of a Response, the Panel accepts as true all reasonable allegations . . . unless clearly contradicted by the evidence.”). However, the Panel will examine the record to determine whether Respondent has rights or legitimate interests in the disputed domain name under Policy ¶ 4(c).
Complainant claims that Respondent is not commonly known by the <budweiser-usa.com> domain name. Respondent has failed to respond to these proceedings and has therefore failed to present any evidence suggesting that Respondent is commonly known by the <budweiser-usa.com> domain name. After examining the WHOIS information, the Panel determines that the WHOIS information does not indicate that Respondent is commonly known by the disputed domain name. Complainant asserts that Respondent is not associated with Complainant and has never been authorized to use Complainant’s BUDWEISER mark. Based on the evidence in the record, the Panel agrees with Complainant and finds that Respondent is not commonly known by the <budweiser-usa.com> domain name under 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 IndyMac Bank F.S.B. v. Eshback, FA 830934 (Nat. Arb. Forum Dec. 7, 2006) (finding that the respondent failed to establish rights and legitimate interests in the <emitmortgage.com> domain name as the respondent was not authorized to register domain names featuring the complainant’s mark and failed to submit evidence of that it is commonly known by the disputed domain name).
Complainant contends that Respondent is not utilizing the <budweiser-usa.com> domain name for a bona fide offering of goods or services, or for any legitimate noncommercial or fair use. Respondent’s disputed domain name fails to resolve to an active website. The Panel finds Respondent’s failure to make an active use of the <budweiser-usa.com> domain name is not a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use of the disputed domain name under Policy ¶ 4(c)(iii). See Thermo Electron Corp. v. Xu, FA 713851 (Nat. Arb. Forum July 12, 2006) (finding that the respondent’s non-use of the disputed domain names demonstrates that the respondent is not using the disputed domain names for a bona fide offering of goods or services under Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii)); see also Boeing Co. v. Bressi, D2000-1164 (WIPO Oct. 23, 2000) (finding no rights or legitimate interests where the respondent has advanced no basis on which the panel could conclude that it has a right or legitimate interest in the domain names, and no commercial use of the domain names has been established).
Respondent further uses its <budweiser-usa.com> domain name to host e-mail addresses that Respondent utilizes in a phishing scam. Respondent posts job advertisements and uses the e-mail addresses associated with the disputed domain name to correspond with Internet users that apply for the job. Respondent requests credit reports and other personal information from these applicants. The Panel finds Respondent’s use of the <budweiser-usa.com> domain name as a part of a phishing scheme is not evidence of legitimate rights and interests in the <budweiser-usa.com> domain name pursuant to Policy ¶ 4(a)(ii). See Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (finding that using a domain name in a fraudulent scheme to deceive Internet users into providing their credit card and personal information is not a bona fide offering of goods or services nor a legitimate noncommercial or fair use); see also Capital One Fin. Corp. v. Howel, FA 289304 (Nat. Arb. Forum Aug. 11, 2004) (finding that using a domain name to redirect Internet users to a website that imitated the complainant’s credit application website and attempted to fraudulently acquire personal information from the complainant’s clients was not a bona fide offering of goods or services or a legitimate noncommercial or fair use).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
The Panel finds that it may consider the totality of the
circumstances when conducting a Policy ¶ 4(a)(iii)
analysis, and that it is not limited to the enumerated factors in Policy ¶
4(b). See Do The
Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (“[T]he
examples [of bad faith] in Paragraph 4(b) are intended to be illustrative,
rather than exclusive.”).
Complainant alleges that Respondent registered and uses the <budweiser-usa.com> domain name in bad faith as Respondent fails to make an active use of the resolving website. The Panel agrees with Complainant and holds that Respondent’s failure to make an active use of the disputed domain name is evidence of bad faith registration and use under Policy ¶ 4(a)(iii). See Telstra Corp. v. Nuclear Marshmallows, D2000-0003 (WIPO Feb. 18, 2000) (“[I]t is possible, in certain circumstances, for inactivity by the Respondent to amount to the domain name being used in bad faith.”); see also DCI S.A. v. Link Commercial Corp., D2000-1232 (WIPO Dec. 7, 2000) (concluding that the respondent’s [failure to make an active use] of the domain name satisfies the requirement of ¶ 4(a)(iii) of the Policy).
Complainant asserts that Respondent’s use of the <budweiser-usa.com> domain name constitutes bad faith registration and use due to Respondent’s phishing scheme. Respondent hosts e-mail addresses with its <budweiser-usa.com> domain name which Respondent uses to attempt to gain personal and financial information from Internet users through fake job postings. The Panel finds Respondent’s use of the disputed domain name for such a purpose constitutes bad faith registration and use pursuant to Policy ¶ 4(a)(iii). See Hess Corp. v. GR, FA 770909 (Nat. Arb. Forum Sept. 19, 2006) (finding that the respondent demonstrated bad faith registration and use because it was attempting to acquire the personal and financial information of Internet users through a confusingly similar domain name); see also Juno Online Servs., Inc. v. Nelson, FA 241972 (Nat. Arb. Forum Mar. 29, 2004) (“The domain name <billing-juno.com> was registered and used in bad faith by using the name for fraudulent purposes.”).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(iii).
Having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <budweiser-usa.com> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: August 16, 2010
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