Anheuser-Busch, Incorporated v. Forum LLC
Claim Number: FA0608000771335
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 Forum LLC (“Respondent”), P.O. Box 2331, Suite 201, Roseau, Roseau, II 00152, DM.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <bushjobs.com>, registered with Moniker Online Services, 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 National Arbitration Forum electronically on August 7, 2006; the National Arbitration Forum received a hard copy of the Complaint on August 10, 2006.
On August 18, 2006, Moniker Online Services, Inc. confirmed by e-mail to the National Arbitration Forum that the <bushjobs.com> domain name is registered with Moniker Online Services, Inc. and that Respondent is the current registrant of the name. Moniker Online Services, Inc. has verified that Respondent is bound by the Moniker Online Services, 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 August 21, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 11, 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@bushjobs.com by e-mail.
Having received no response from Respondent, the National Arbitration Forum transmitted to the parties a Notification of Respondent Default.
On September 18, 2006, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed the Honorable Charles K. McCotter, Jr. (Ret.) 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 <bushjobs.com> domain name is confusingly similar to Complainant’s BUSCH mark.
2. Respondent does not have any rights or legitimate interests in the <bushjobs.com> domain name.
3. Respondent registered and used the <bushjobs.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
Complainant, Anheuser-Busch, Incorporated, is the leading American beer brewer holding nearly fifty percent of the United States market. Complainant holds a registration with the United States Patent and Trademark Office (“USPTO”) for the BUSCH mark (Reg. No. 612, 424 issued February 14, 1956). Complainant utilizes the BUSCH mark in connection with brewing, marketing and distributing beer. Complainant holds numerous domain name registrations including the BUSCH mark, one of which is <buschjobs.com>, used in connection with employment opportunities with Complainant.
Respondent registered the <bushjobs.com> domain name on May 15, 2002. Respondent is using the disputed domain name to redirect Internet users to Respondent’s website, composed entirely of links to third-party websites. Many of the links appear to be to websites in purporting to be in competition with Complainant, for example “job listings” and “Anheuser Busch Employment Opportunities.”
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.
Complainant’s rights in the BUSCH mark were established
through registration with the USPTO well before Respondent registered the
disputed domain name. Thus, the Panel
finds that Complainant has rights in the BUSCH mark pursuant to Policy ¶
4(a)(i). See Men’s Wearhouse, Inc.
v. Wick, FA 117861 (Nat. Arb. Forum Sept. 16, 2002) (“Under U.S. trademark
law, registered marks hold a presumption that they are inherently distinctive
[or] have acquired secondary meaning.”); see also
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.”).
Respondent’s <bushjobs.com>
domain name is confusingly similar to Complainant’s BUSCH mark. The disputed domain name deletes the letter
“c” from Complainant’s mark and adds the term “jobs.” The deletion of a single letter from Complainant’s mark, which
results in a domain name that mimics a common typing error or misspelling, does
not overcome the confusing similarity between the disputed domain name and
Complainant’s mark. Further, the
addition of the term “jobs” which is descriptive of employment opportunities,
also fails to distinguish the disputed domain name from Complainant’s mark. The term “jobs” combined with Complainant’s
mark suggests that the domain name is related to a website offering information
about employment with Complainant.
Thus, the Panel finds that the disputed domain name is confusingly
similar Complainant’s mark pursuant to Policy ¶ 4(a)(i). See State Farm Mut. Auto.
Ins. Co. v. Try Harder & Co., FA 94730 (Nat. Arb. Forum June 15, 2000)
(finding that the domain name <statfarm.com> is confusingly similar to
the complainant’s STATE FARM mark); see also Space Imaging LLC v. Brownell,
AF-0298 (eResolution Sept. 22, 2000) (finding confusing similarity where the
respondent’s domain name combines the complainant’s mark with a generic term
that has an obvious relationship to the complainant’s business).
The Panel finds that Policy ¶ 4(a)(i) has been satisfied.
Complainant asserts that Respondent lacks rights or legitimate interests in the disputed domain name. Complainant’s assertion constitutes a prima facie case for purposes of the Policy, and shifts the burden to Respondent to demonstrate that it does have rights or legitimate interests pursuant to Policy ¶ 4(a)(ii). Respondent’s opportunity to submit a Response is the proper way for Respondent to fulfill its burden and bring evidence and arguments that demonstrate its rights and legitimate interests to the attention of the Panel. Respondent failure to submit a Response suggests to the Panel that Respondent lacks rights or legitimate interests. See G.D. Searle v. Martin Mktg., FA 118277 (Nat. Arb. Forum Oct. 1, 2002) (“Because Complainant’s Submission constitutes a prima facie case under the Policy, the burden effectively shifts to Respondent. Respondent’s failure to respond means that Respondent has not presented any circumstances that would promote its rights or legitimate interests in the subject domain name under Policy ¶ 4(a)(ii).”); see also Bank of Am. Corp. v. McCall, FA 135012 (Nat. Arb. Forum Dec. 31, 2002) (“Respondent's failure to respond not only results in its failure to meet its burden, but also will be viewed as evidence itself that Respondent lacks rights and legitimate interests in the disputed domain name.”). Respondent’s failure to respond notwithstanding, the Panel will examine the available evidence to determine whether Respondent has rights or legitimate interests in the disputed domain name as contemplated by Policy ¶ 4(c).
Respondent is using the <bushjobs.com> to redirect Internet users to Respondent’s website. Respondent’s website features links to third-party websites, many of which appear to compete with Complainant. Presumably, Respondent receives pay-per-click fees when Internet users follow the posted third-party links. Respondent is not engaged in a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i), because Respondent’s website is composed solely of links to third-party websites. Nor is Respondent using the disputed domain name in connection with a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii), because Respondent presumably receives pay-per-click referral fees from the links. Thus, the Panel finds that Respondent lacks rights or legitimate interests in the disputed domain name as contemplated by Policy ¶¶ 4(c)(i) and (iii). See Computer Doctor Franchise Sys., Inc. v. Computer Doctor, FA 95396 (Nat. Arb. Forum Sept. 8, 2000) (finding that the respondent’s website, which is blank but for links to other websites, is not a legitimate use of the domain names); see also TM Acquisition Corp. v. Sign Guards, FA 132439 (Nat. Arb. Forum Dec. 31, 2002) (finding that the respondent’s diversionary use of the complainant’s marks to send Internet users to a website which displayed a series of links, some of which linked to the complainant’s competitors, was not a bona fide offering of goods or services); see also 24 Hour Fitness USA, Inc. v. 24HourNames.com-Quality Domains For Sale, FA 187429 (Nat. Arb. Forum Sep. 26, 2003) (holding that Respondent’s use of the <24hrsfitness.com>, <24-hourfitness.com> and <24hoursfitness.com> domain names to redirect Internet users to a website featuring advertisements and links to Complainant’s competitors could not be considered a bona fide offering of goods or services or a legitimate noncommercial or fair use).
Furthermore, there is no available evidence that Respondent
is commonly known by the <bushjobs.com> domain name. Respondent’s WHOIS information identifies
Respondent as “Forum LLC,” a name unrelated to the disputed domain name. Further, Complainant asserts without
contradiction that Respondent is not affiliated with Complainant and
Complainant has not authorized Respondent to reflect Complainant’s mark in a
domain name. Thus, the Panel finds that
Respondent is not commonly known by the disputed domain name and lacks rights
or legitimate interests pursuant to 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 Compagnie de Saint Gobain v.
Com-Union Corp., D2000-0020 (WIPO Mar. 14, 2000) (finding no rights or
legitimate interest where the respondent was not commonly known by the mark and
never applied for a license or permission from the complainant to use the trademarked
name).
The Panel finds that Policy ¶ 4(a)(ii) has been satisfied.
Respondent is using the <bushjobs.com> domain name to redirect Internet users to Respondent’s website filled with links to third-party websites. An Internet user seeking information about employment opportunities with Complainant may use a combination of Complainant’s mark and the term “jobs” in an Internet search engine or web browser. If they typed in that combination correctly, they would find themselves at Complainant’s genuine website connected with the <buschjobs.com> domain name. However, if Internet users leave the letter “c” out of Complainant’s mark, either through a spelling error or typographical error, those Internet user may instead find themselves at Respondent’s website. Once at Respondent’s website, they may follow the links to the websites of Complainant’s competitors and thus, not find themselves connected with Complainant. The Panel finds that such use disrupts Complainant’s business and is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iii). See Disney Enters., Inc. v. Noel, FA 198805 (Nat. Arb. Forum Nov. 11, 2003) (“Respondent registered a domain name confusingly similar to Complainant's mark to divert Internet users to a competitor's website. It is a reasonable inference that Respondent's purpose of registration and use was to either disrupt or create confusion for Complainant's business in bad faith pursuant to Policy ¶¶ 4(b)(iii) [and] (iv).”); see also Puckett, Individually v. Miller, D2000-0297 (WIPO June 12, 2000) (finding that the respondent has diverted business from the complainant to a competitor’s website in violation of Policy ¶ 4(b)(iii)).
Respondent’s <bushjobs.com> domain name is confusingly similar to Complainant’s BUSCH mark. Internet users may easily find themselves redirected to Respondent’s website by combining the term “jobs” with a misspelling of Complainant’s mark in an Internet search engine or web browser. Once at Respondent’s website, Internet users may mistakenly believe that Respondent is affiliated with or sponsored by Complainant. Respondent is using this confusion to its advantage by presumably collecting click through fees from the links to third-party websites featured on Respondent’s website. The Panel finds that such use is evidence of bad faith registration and use pursuant to Policy ¶ 4(b)(iv). See TM Acquisition Corp. v. Warren, FA 204147 (Nat. Arb. Forum Dec. 8, 2003) (“Although Complainant’s principal website is <century21.com>, many Internet users are likely to use search engines to find Complainant’s website, only to be mislead to Respondent’s website at the <century21realty.biz> domain name, which features links for competing real estate websites. Therefore, it is likely that Internet users seeking Complainant’s website, but who end up at Respondent’s website, will be confused as to the source, sponsorship, affiliation or endorsement of Respondent’s website.”); see also Associated Newspapers Ltd. v. Domain Manager, FA 201976 (Nat. Arb. Forum Nov. 19, 2003) (“Respondent's prior use of the <mailonsunday.com> domain name is evidence of bad faith pursuant to Policy ¶ 4(b)(iv) because the domain name provided links to Complainant's competitors and Respondent presumably commercially benefited from the misleading domain name by receiving ‘click-through-fees.’”).
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 <bushjobs.com> domain name be TRANSFERRED from Respondent to Complainant.
The Honorable Charles K. McCotter, Jr. (Ret.), Panelist
Dated: October 2, 2006
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