Anheuser-Busch, LLC v. dont save
Claim Number: FA1703001721199
Complainant is Anheuser-Busch, LLC (“Complainant”), represented by Myers Dill of HUSCH BLACKWELL LLP, Missouri, USA. Respondent is dont save (“Respondent”), represented by Marben Luis Tan of ATO LAW, unspecified attorney location.
REGISTRAR AND DISPUTED DOMAIN NAME
The domain name at issue is <budlight.space>, registered with PDR Ltd. d/b/a PublicDomainRegistry.com.
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 Forum electronically on March 10, 2017; the Forum received payment on March 10, 2017.
On March 14, 2017, PDR Ltd. d/b/a PublicDomainRegistry.com confirmed by e-mail to the Forum that the <budlight.space> domain name is registered with PDR Ltd. d/b/a PublicDomainRegistry.com and that Respondent is the current registrant of the names. PDR Ltd. d/b/a PublicDomainRegistry.com has verified that Respondent is bound by the PDR Ltd. d/b/a PublicDomainRegistry.com registration agreement and has thereby agreed to resolve domain disputes brought by third parties in accordance with ICANN’s Uniform Domain Name Dispute Resolution Policy (the “Policy”).
On March 15, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of April 4, 2017 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@budlight.space. Also on March 15, 2017, the Written Notice of the Complaint, notifying Respondent of the e-mail 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 Forum transmitted to the parties a Notification of Respondent Default.
On April 13, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed Bruce E. Meyerson as Panelist.
Having reviewed the communications records, the Administrative Panel (the "Panel") finds that the 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" through submission of Electronic and Written Notices, as defined in Rule 1 and Rule 2. Therefore, the Panel may issue its decision based on the documents submitted and in accordance with the ICANN Policy, ICANN Rules, the 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
1. Complainant, Anheuser-Busch, LLC, is in the business of brewing and marketing beer. In connection with its business, Complainant uses the BUD LIGHT trademark. Complainant has registered the BUD LIGHT mark with the United States Patent and Trademark Office (“USPTO”) (e.g., Reg. No. 1,261,873, registered Dec. 20, 1983) and other trademark agencies throughout the world.
2. Respondent’s <budlight.space>[1] domain name is confusingly similar to the BUD LIGHT mark because it incorporates the mark in its entirety—less the space, and adds only the “.space” generic top-level domain (“gTLD”).
3. Respondent has no rights or legitimate interests in <budlight.space>. Respondent is not commonly known by the domain name and Complainant has not licensed or permitted Respondent to use the BUD LIGHT mark in any respect.
4. Respondent has not made any use of or any demonstrable preparations to use the domain name in connection with a bona fide offering of goods or services. Currently, the domain name resolves to a video of a protest in the streets of a major city. The page does not include any text nor does it contain any other sublinks associated with the page.
5. Respondent has registered and uses the domain name <budlight.space> in bad faith. Respondent registered the domain name in an attempt to drive Internet users to the resolving website based on the fame of Complainant’s BUD LIGHT mark. Such an attempt suggests bad faith registration pursuant to Policy ¶ 4(b)(iv).
6. Additionally, using a well-known mark in a manner which promotes a certain political viewpoint shows bad faith under Policy ¶ 4(b)(iv).
7. Respondent’s registration of the domain name with actual knowledge of Complainant’s rights is evidence of bad faith registration and use within the meaning of Policy ¶ 4(a)(iii).
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant holds trademark rights for the BUD LIGHT mark. Respondent’s domain name is confusingly similar to Complainant’s BUD LIGHT mark. Complainant has established that Respondent lacks rights or legitimate interests in the use of the <budlight.space> domain name and that Respondent registered and uses the domain name in bad faith.
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."
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.
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(f), 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 (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.”).
Complainant, Anheuser-Busch, LLC, is in the business of brewing and selling beer. In furtherance of its business, Complainant uses the BUD LIGHT trademark. Complainant has registered the BUD LIGHT mark with the USPTO (e.g., Reg. No. 1,261,873, registered Dec. 20, 1983) and other trademark agencies throughout the world. Registration with the USPTO is sufficient in conferring rights in a mark under Policy ¶ 4(a)(i). See T-Mobile USA, Inc. dba MetroPCS v. Ryan G Foo / PPA Media Services, FA 1627542 (Forum Aug. 9, 2015) (finding that Complainant has rights in the METROPCS mark through its registration with the United States Patent and Trademark Office).
Complainant argues that Respondent’s <budlight.space> domain name is confusingly similar to the BUD LIGHT mark because it incorporates the mark in its entirety, less the space, and adds only the “.space” gTLD. Domain names are confusingly similar to a mark where the domain names consists of a mark or marks and an added gTLD. See Red Hat, Inc. v. Haecke, FA 726010 (Forum July 24, 2006) (concluding that the <redhat.org> domain name is identical to the complainant’s RED HAT mark because the mere addition of gTLD was insufficient to differentiate the disputed domain name from the mark). Additionally, the omission of a space found in a mark is irrelevant when determining if a domain name is confusingly similar. See Health Republic Insurance Company v. Gustavo Winchester, FA 1622089 (Forum July 7, 2015) (finding, “Domain name syntax requires TLDs. Domain name syntax prohibits spaces. Therefore, omitted spacing and adding a TLD must be ignored when performing a Policy ¶4(a)(i) analysis.”). The Panel agrees that Respondent’s <budlight.space> domain name is confusingly similar to the BUD LIGHT mark per Policy ¶ 4(a)(i).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(i).
Complainant alleges that Respondent holds no rights or legitimate interests in the <budlight.space> domain name. This allegation must be supported with a prima facie showing by Complainant under Policy ¶ 4(a)(ii). After a complainant successfully makes a prima facie case, a respondent is faced with the burden of proving it does have rights or legitimate interests in the domain name. In Swedish Match UK Ltd. v. Admin, Domain, FA 873137 (Forum Feb. 13, 2007), the panel held that when a complainant produces a prima facie case, the burden of proof then shifts to the respondent to demonstrate its rights or legitimate interests in the domain name under Policy ¶ 4(c); see also Compagnie Generale des Matieres Nucleaires v. Greenpeace Int’l, D2001-0376 (WIPO May 14, 2001) (“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 holds that Complainant has made a prima facie case.
Complainant contends that Respondent has no rights or legitimate interests in <budlight.space>. In support of this assertion, Complainant has provided evidence that Respondent is not commonly known by the domain name and that Complainant has not licensed or permitted Respondent to use the BUD LIGHT mark. See IndyMac Bank F.S.B. v. Eshback, FA 830934 (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 that it is commonly known by the domain name). Furthermore, where a response is lacking, WHOIS information can support a finding that a respondent is not commonly known by a domain name in dispute. See Chevron Intellectual Property LLC v. Fred Wallace, FA1506001626022 (Forum July 27, 2015) (finding that the respondent was not commonly known by the <chevron-europe.com> domain name under Policy ¶ 4(c)(ii), as the WHOIS information named “Fred Wallace” as registrant of the disputed domain name). The WHOIS information of record identifies Respondent as “don’t save” with “N/A.” The Panel therefore finds that Respondent is not commonly known by the <budlight.space> domain name.
Complainant argues that Respondent has not made any use of or demonstrable preparations to use the <budlight.space> domain name in connection with a bona fide offering of goods or services or legitimate noncommercial or fair use. The use of a domain name that is confusingly similar to a complainant’s trademark to divert Internet users to a respondent’s own site is not a use considered to be in connection with a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), or a legitimate noncommercial or fair use of the domain name pursuant to Policy ¶ 4(c)(iii). See Seiko Kabushiki Kaisha v. CS into Tech, FA 198795 (Forum Dec. 6, 2003) (“Diverting customers, who are looking for products relating to the famous SEIKO mark, to a website unrelated to the mark is not a bona fide offering of goods or services under Policy ¶ 4(c)(i), nor does it represent a noncommercial or fair use under Policy ¶ 4(c)(iii).”) Complainant has shown that the <budlight.space> domain name resolves to a video of a protest in the streets of a major city. The page does not include any text nor does it contain any other links associated with the page. The Panel therefore agrees that Complainant has shown that Respondent’s use of the <budlight.space> 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 domain name pursuant to Policy ¶ 4(c)(iii).
The Panel finds Complainant has satisfied Policy ¶ 4(a)(ii).
Complainant alleges that Respondent has registered and uses the <budlight.space> domain name in bad faith as Respondent is merely trying to benefit from confusion by operating its resolving website benefiting from the misuse of Complainant’s mark. Such use is evidence of bad faith registration and use under Policy ¶ 4(b)(iv). See World Wrestling Entertainment, Inc. v. REDA EL KASRAOUI, FA 1111001416010 (Forum Dec. 29, 2011) (finding bad faith registration and use under Policy ¶ 4(b)(iv) where the respondent was attempting to benefit from confusion created by operating websites with confusingly similar domain names). The <budlight.space> domain does not resolve to an active page but simply to a protest video with no other links or information accompanying it. The Panel finds such a use satisfies Policy ¶ 4(b)(iv).
Complainant further argues that Respondent registered the domain name with actual knowledge of the BUD LIGHT mark and Complainant’s rights in the mark. The Panel finds that Respondent had actual knowledge of Complainant's mark and rights and therefore determines that Respondent registered the <budlight.space> domain name in bad faith under Policy ¶ 4(a)(iii). Minicards Vennootschap Onder FIrma Amsterdam v. Moscow Studios, FA 1031703 (Forum Sept. 5, 2007) (holding that respondent registered a domain name in bad faith under Policy ¶ 4(a)(iii) after concluding that respondent "actual knowledge of Complainant's mark when registering the disputed domain name").
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 <budlight.space> domain name be TRANSFERRED from Respondent to Complainant.
Bruce E. Meyerson, Panelist
Dated: April 24, 2017
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