Anheuser-Busch, Incorporated v. RoscoRacing a/k/a John Sandberg
Claim Number: FA0606000733004
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 RoscoRacing a/k/a John Sandberg (“Respondent”), 39 Windermere Ave., Ellington, CT 06029.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <budweiser.tv>, registered with TV Corporation.
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.
Sandra J. Franklin as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on June 15, 2006; the National Arbitration Forum received a hard copy of the Complaint on June 19, 2006.
On June 16, 2006, TV Corporation confirmed by e-mail to the National Arbitration Forum that the <budweiser.tv> domain name is registered with TV Corporation and that Respondent is the current registrant of the name. TV Corporation has verified that Respondent is bound by the TV Corporation 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 June 20, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of July 10, 2006 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@budweiser.tv by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On July 17, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Sandra J. Franklin 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 name be transferred from Respondent to Complainant.
A. Complainant makes the following assertions:
1. Respondent’s <budweiser.tv> domain name is identical to Complainant’s BUDWEISER mark.
2. Respondent does not have any rights or legitimate interests in the <budweiser.tv> domain name.
3. Respondent registered and used the <budweiser.tv> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Anheuser-Busch, Incorporated, is the leading American brewer, and sells its products in more than 80 countries. Complainant’s revenues in 2005 were in excess of $15 billion, and Complainant is also a worldwide sponsor of sporting and entertainment events. Complainant holds trademark registrations in numerous countries for its BUDWEISER mark, including with the United States Patent and Trademark Office (“USPTO”) (Reg. No. 922,481 issued October 19, 1971).
Respondent registered the <budweiser.tv> domain name on January 28, 2003. Respondent’s disputed domain name resolves to a website that is unused except for the words “BUDWEISER.TV ‘LET’S GO RACING’” and a picture of a car.
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.
The Panel finds that Complainant’s trademark registrations, both internationally and with the USPTO, sufficiently establish Complainant’s rights in the BUDWEISER mark. See 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.”); see also Janus Int’l Holding Co. v. Rademacher, D2002-0201 (WIPO Mar. 5, 2002) ("Panel decisions have held that registration of a mark is prima facie evidence of validity, which creates a rebuttable presumption that the mark is inherently distinctive.").
The Panel finds that Respondent’s <budweiser.tv>
domain name is identical to Complainant’s BUDWEISER mark pursuant to Policy ¶
4(a)(i) as it uses the Complainant’s mark in its entirety and simply adds the country code top level domain (“ccTLD”)
“.tv.” The addition of a ccTLD is not
enough to make the disputed domain name sufficiently different from
Complainant’s mark. See World
Wrestling Fed'n Entm't, Inc. v. Rapuano, DTV2001-0010 (WIPO May 23, 2001)
(“The addition of the country code top level domain (ccTLD) designation
<.tv> does not serve to distinguish [the disputed domain] names from the
complainant’s marks since ‘.tv’ is a common Internet address identifier that is
not specifically associated with Respondent.”); see also Clairol Inc. v. Fux,
DTV2001-0006 (WIPO May 7, 2001) (finding that the domain name <clairol.tv>
is identical to the complainant’s CLAIROL marks).
The Panel finds that
Policy ¶ 4(a)(i) has been satisfied.
Complainant has alleged that Respondent lacks rights or legitimate interests in the <budweiser.tv> domain name. Complainant must first make a prima facie case in support of its allegations, and the burden then shifts to Respondent to show it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). See 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.”); see also 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”).
Respondent’s failure to answer the Complaint raises a presumption that Respondent has no rights or legitimate interests in the <budweiser.tv> domain name. See Charles Jourdan Holding AG v. AAIM, D2000-0403 (WIPO June 27, 2000) (finding it appropriate for the panel to draw adverse inferences from the respondent’s failure to reply to the complaint); see also Desotec N.V. v. Jacobi Carbons AB, D2000-1398 (WIPO Dec. 21, 2000) (finding that failing to respond allows a presumption that the complainant’s allegations are true unless clearly contradicted by the evidence). However, the Panel will now examine the record to determine if Respondent has rights or legitimate interests under Policy ¶ 4(c).
Complainant asserts that Respondent is not authorized to use
Complainant’s BUDWEISER mark, and that Respondent is not associated with
Complainant in any way. Moreover,
Respondent’s WHOIS information does not suggest that Respondent is commonly
known by the disputed domain name.
There is also no evidence in the record to suggest that Respondent is or
has ever been known by the disputed domain name. Consequently, the Panel finds that the Respondent is not commonly
known by the disputed domain name under Policy ¶ 4(c)(ii), especially due to
the famous nature of Complainant’s BUDWEISER mark. See G.D. Searle & Co. v. Cimock, FA 126829 (Nat. Arb. Forum Nov. 13, 2003) (“Due to the fame of
Complainant’s mark there must be strong evidence that Respondent is commonly
known by the disputed domain name in order to find that Respondent has rights
or legitimate interests in the disputed domain name pursuant to Policy ¶
4(c)(ii). However, there is no evidence
on record, and Respondent has not come forward with any proof to establish that
it is commonly known as CELEBREXRX or <celebrexrx.com>.”); see also Ian Schrager Hotels, L.L.C. v. Taylor, FA 173369 (Nat. Arb. Forum Sept. 25, 2003) (finding that
without demonstrable evidence to support the assertion that a respondent is
commonly known by a domain name, the assertion must be rejected).
The evidence on record indicates that Respondent is not
actively using the website. There is
also no evidence in the record of any intention to use the website for a bona
fide offering of goods or services or a legitimate noncommercial or fair
use by the Respondent. Such inactive
use is neither a bona fide offering of goods or services under Policy ¶
4(c)(i) nor a legitimate noncommercial or fair use under Policy ¶
4(c)(iii). See Flor-Jon Films, Inc. v. Larson, FA
94974 (Nat. Arb. Forum July 25, 2000) (finding that the respondent’s failure to
develop the site demonstrates a lack of legitimate interest in the domain
name); see also Ziegenfelder Co.
v. VMH Enter., Inc., D2000-0039 (WIPO Mar. 14, 2000) (finding that failure
to provide a product or service or develop the site demonstrates that the
respondent had not established any rights or legitimate interests in the domain
name).
The Panel finds that Policy ¶
4(a)(ii) has been satisfied.
Complainant has alleged that Respondent acted in bad faith by registering and using the disputed domain name that contains Complainant’s mark in its entirety. Respondent is not presently using the disputed domain name, and there is no demonstrable evidence that it intends to do so. Such inactive use by the Respondent constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000) (finding bad faith where the respondent made no use of the domain name in question and there are no other indications that the respondent could have registered and used the domain name in question for any non-infringing purpose); see also Phat Fashions v. Kruger, FA 96193 (Nat. Arb. Forum Dec. 29, 2000) (finding bad faith under Policy ¶ 4(b)(iv) even though the respondent has not used the domain name because “[i]t makes no sense whatever to wait until it actually ‘uses’ the name, when inevitably, when there is such use, it will create the confusion described in the Policy”).
The Panel further finds that since Respondent resides in the United States, knowledge of the Complainant’s mark is inferred, due to the famous nature of Complainant’s BUDWEISER mark. Such knowing use of Complainant’s mark constitutes bad faith registration and use under Policy ¶ 4(a)(iii). See Ty Inc. v. Parvin, D2000-0688 (WIPO Nov. 9, 2000) (finding that the respondent’s registration and use of an identical and/or confusingly similar domain name was in bad faith where the complainant’s BEANIE BABIES mark was famous and the respondent should have been aware of it); see also Victoria's Secret v. Hardin, FA 96694 (Nat Arb. Forum Mar. 31, 2001) (finding that “[i]n light of the notoriety of Complainant’s famous marks, Respondent had actual or constructive knowledge of the BODY BY VICTORIA marks at the time [Respondent] registered the disputed domain name” and such knowledge constituted bad faith).
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 <budweiser.tv> domain name be TRANSFERRED from Respondent to Complainant.
Sandra J. Franklin, Panelist
Dated: July 31, 2006
Click Here to return to the main Domain Decisions Page.
Click Here to return to our Home Page
National
Arbitration Forum