Anheuser-Busch, LLC v. Darin Short / mango-rita / mangorita / darinshort.com
Claim Number: FA1707001741353
Complainant is Anheuser-Busch, LLC (“Complainant”), represented by Madelon Lapidus of Holland & Hart LLP, Colorado, USA. Respondent is Darin Short / mango-rita / mangorita / darinshort.com (“Respondent”), Texas, USA.
REGISTRAR AND DISPUTED DOMAIN NAMES
The domain names at issue are <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com>, registered with Tucows Domains 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.
The Honorable Charles K. McCotter, Jr. (Ret.) as Panelist.
Complainant submitted a Complaint to the Forum electronically on July 24, 2017; the Forum received payment on July 24, 2017.
On July 25, 2017, Tucows Domains Inc. confirmed by e-mail to the Forum that the <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> domain names are registered with Tucows Domains Inc. and that Respondent is the current registrant of the names. Tucows Domains Inc. has verified that Respondent is bound by the Tucows Domains Inc. 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 July 27, 2017, the Forum served the Complaint and all Annexes, including a Written Notice of the Complaint, setting a deadline of August 16, 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@mangorita.com, postmaster@mang-o-rita.com, and postmaster@mango-rita.com. Also on July 27, 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 August 17, 2017, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 names be transferred from Respondent to Complainant.
A. Complainant
Complainant has rights in the MANGORITA mark pursuant to its January 7, 1997 registration of the mark with the United States Patent and Trademark Office (“USPTO”) (Registry No. 2,028,576). Respondent’s <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> are all confusingly similar because they each incorporate the mark entirely while merely adding hyphenation and the generic top-level domain (“gTLD”) “.com.”
Respondent has no rights or legitimate interests in <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com>. The WHOIS information indicates Respondent may be commonly known by the disputed domain names, but no evidence exists to support such a report—and Respondent is not an authorized licensee or vendor of Complainant or its marks. Furthermore, Respondent’s <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> have not been used in connection with any bona fide offering of goods or services or for any legitimate noncommercial or fair use. Instead, the websites redirect to a page that includes Complainant’s mark, a statement that “This drink is really getting a lot of national attention,” and a solicitation for the purchase of the domain name.
Respondent registered and used <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> in bad faith. The offer for sale included on the resolving websites shows Policy ¶ 4(b)(i) bad faith. Further, actual knowledge is apparent given Respondent’s inclusion of a photograph of Complainant’s product packaging and admission that “This drink is really getting a lot of national attention.”
B. Respondent
Respondent failed to submit a Response in this proceeding.
Complainant, Anheuser-Busch, LLC, has rights in the MANGORITA mark pursuant to its January 7, 1997 registration of the mark with the USPTO (Registry No. 2,028,576). Respondent’s <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> are all confusingly similar to Complainant’s MANGORITA mark.
Respondent, Darin Short / mango-rita / mangorita / darinshort.com, registered <mangorita.com> and <mango-rita.com> on April 15, 2014; and <mang-o-rita.com>, on November 16, 2016.
Respondent has no rights or legitimate interests in <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com>. The websites redirect to a page that includes Complainant’s mark, a statement that “This drink is really getting a lot of national attention,” and a solicitation for the purchase of the domain name.
Respondent registered and used <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> 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 has rights in the MANGORITA mark under Policy ¶ 4(a)(i) through registration with the USPTO. See BGK Trademark Holdings, LLC & Beyoncé Giselle Knowles-Carter v. Chanphut / Beyonce Shop, FA 1626334 (Forum Aug. 3, 2015) (Complainant’s registration with the USPTO (or any other governmental authority) adequately proves its rights under Policy ¶ 4(a)(i).).
Respondent’s <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> are all confusingly similar because they each incorporate the mark entirely while merely adding hyphenation and the gTLD “.com.”
Respondent has no rights or legitimate interests in the <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> domain names. The WHOIS information indicates Respondent may be commonly known by the disputed domain names, but no evidence exists to support such a report—and Respondent is not an authorized licensee or vendor of Complainant or its marks. See Moneytree, Inc. v. Matt Sims / MoneyTreeNow, FA 1602721 (Forum Mar. 3, 2015) (finding that even though the respondent had listed “Matt Sims” of “MoneyTreeNow” as registrant of the <moneytreenow.com> domain name, the respondent was not commonly known by the disputed domain name pursuant to Policy ¶ 4(c)(ii), because he had failed to list any additional affirmative evidence beyond the WHOIS information). Here, even though Respondent is listed as “Darin Short” of “mango-rita / mangorita / darinshort.com,” Respondent has not offered any affirmative evidence to support this point, Respondent is not commonly known by the domain names per Policy ¶ 4(c)(ii).
Respondent has not used the <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> domain names in connection with a bona fide offering of goods or services or for any legitimate noncommercial or fair use. Instead, the websites redirect to a page that includes Complainant’s mark, a statement that “This drink is really getting a lot of national attention,” and a solicitation for the purchase of the domain name. See Altria Group, Inc. v. Stacey Scott / Baldwin Inc, FA 1584163 (Forum Nov. 12, 2014) (finding that the respondent’s only use of the resolving website was to advertise the sale of the associated domain name indicated that the respondent lacked rights and legitimate interests in the disputed domain name under Policy ¶ 4(a)(ii)).
Respondent registered and used <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> in bad faith. Specifically, Respondent’s offer for sale included on the resolving websites shows Policy ¶ 4(b)(i) bad faith. A general offer for sale—or a clear showing that a respondent simply registered a domain name for the purpose of selling it to a complainant or a competitor of a complainant—indicates bad faith under Policy ¶ 4(b)(i). See Diners Club Int’l Ltd. v. Domain Admin******It's all in the name******, FA 156839 (Forum June 23, 2003) (finding that when the domain name itself notes that it is “available for lease or sale,” evidence that the domain name was registered and used in bad faith pursuant to Policy ¶ 4(b)(i) can be inferred from the fact that “the sole value of the [<wwwdinersclub.com] domain name is dictated by its relation to the complainant’s registered DINERS CLUB mark). The sole value of <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> are derived from the relation to Complainant’s MANGORITA mark, a conclusion bolstered by Respondent’s inclusion of Complainant’s mark on the resolving websites and the statement: “This drink is really getting a lot of national attention.”
Respondent registered and used the disputed domains with actual knowledge of Complainant’s mark. Therefore, Respondent engaged in bad faith under Policy ¶ 4(a)(iii). See Google Inc. v. Ahmed Humood, FA 1591796 (Forum Jan. 7, 2015) (“This Panel makes that inference; Respondent has actual knowledge of Complainant’s mark at the time of domain name registration based on the fame of Complainant’s GOOGLE mark and Respondent’s use of one of the disputed domain names to detail Internet domain name registration and maintenance services related to and in competition with Complainant.”).
Complainant having established all three elements required under the ICANN Policy, the Panel concludes that relief shall be GRANTED.
Accordingly, it is Ordered that the <mangorita.com>, <mang-o-rita.com>, and <mango-rita.com> domain names be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: August 31, 2017
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