Anheuser-Busch, Incorporated v. Namegiant.com - This Domain May Be For Sale c/o Mark Segal
Claim Number: FA0608000777166
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 Namegiant.com - This Domain May Be For Sale c/o Mark Segal (“Respondent”), Mulberry House, 583 Fulham Road SW6 5UA GB.
REGISTRAR AND DISPUTED DOMAIN
NAME
The domain name at issue is <buschlight.com>, registered with Enom, Inc.
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.
Terry F. Peppard as Panelist.
Complainant submitted a Complaint to the National Arbitration Forum electronically on August 14, 2006; the National Arbitration Forum received a hard copy of the Complaint on August 17, 2006.
On August 14, 2006, Enom, Inc. confirmed by e-mail to the National Arbitration Forum that the <buschlight.com> domain name is registered with Enom, Inc. and that Respondent is the current registrant of the name. Enom, Inc. has verified that Respondent is bound by the Enom, 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 18, 2006, a Notification of Complaint and Commencement of Administrative Proceeding (the "Commencement Notification"), setting a deadline of September 7, 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@buschlight.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 15, 2006,, pursuant to Complainant's request to have the dispute decided by a single-member Panel, the National Arbitration Forum appointed Terry F. Peppard as sole Panelist in this proceeding.
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:
Complainant is the leading American brewer, holding nearly fifty percent of the United States beer market.
Complainant holds a trademark registration with the United States Patent and Trademark Office (“USPTO”) for the BUSCH LIGHT mark (Reg. No. 1,573,711, first issued December 26, 1989).
Respondent registered the <buschlight.com> domain name on July 25, 2003.
Respondent has not made any active use of the disputed domain name since registering it over three years ago.
Internet users who seek out a website via the disputed domain are directed to a site that does not display any information.
Respondent’s <buschlight.com> domain name is identical to Complainant’s BUSCH LIGHT mark.
Respondent does not have any rights or legitimate interests in the <buschlight.com> domain name.
Respondent registered and uses the <buschlight.com> domain name in bad faith.
B. Respondent failed to submit a Response in this proceeding.
(1) the domain name registered by Respondent is identical to a trademark in which Complainant has rights; and
(2) Respondent has no rights or legitimate interests in respect of the domain name; and
(3) the same domain name was registered and is being used by Respondent 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."
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 a respondent’s failure to respond allows all reasonable inferences of fact in the allegations of a 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:
i. the domain name registered by Respondent is identical or confusingly similar to a
trademark or service mark in which Complainant has rights; and
ii. Respondent has no rights or legitimate interests in respect of the domain name; and
iii. the domain name has been registered and is being used in bad faith.
Complainant has submitted evidence of its registration of
the BUSCH LIGHT mark with the USPTO.
Such evidence establishes Complainant’s rights in the mark pursuant to
Policy ¶ 4(a)(i). 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 Vivendi Universal Games v. XBNetVentures
Inc., FA 198803 (Nat. Arb. Forum Nov. 11, 2003): “Complainant's federal
trademark registrations establish Complainant's rights in the BLIZZARD mark.”
Respondent’s <buschlight.com>
domain name is identical to Complainant’s BUSCH
LIGHT mark in that Respondent’s domain name
incorporates Complainant’s mark in its entirety, adding only the generic
top-level domain “.com.” The addition
of a generic top-level domain to Complainant’s registered mark does not negate
the identical character of Respondent’s domain name pursuant to Policy ¶
4(a)(i). Thus, the Panel finds that the
disputed domain name is identical to Complainant’s mark pursuant to Policy ¶
4(a)(i). See Pomellato S.p.A v. Tonetti, D2000-0493 (WIPO July 7, 2000) (finding
that the domain name <pomellato.com> is identical to a complainant’s mark
because the generic top-level domain (gTLD) “.com” after the name POMELLATO is
not relevant).
The Panel therefore finds that Complainant satisfied Policy ¶ 4(a)(i).
Under Policy ¶ 4(a)(ii), the burden is on Complainant to prove that Respondent does not have rights or legitimate interests in the disputed domain name. Once Complainant has made out a prima facie case, the burden then shifts to Respondent to show that it does have rights or legitimate interests in the challenged domain pursuant to Policy ¶ 4(c). See Do The Hustle, LLC v. Tropic Web, D2000-0624 (WIPO Aug. 21, 2000) (holding that, once the complainant asserts that a respondent has no rights or legitimate interests with respect to a domain, the burden shifts to that respondent to provide “concrete evidence that it has rights to or legitimate interests in the domain name at issue”); see also 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.
It is undisputed on this record that Respondent has not made any active use of the <buschlight.com> domain name since registering it July 25, 2003. Rather, it is alleged, without contradiction from Respondent, that Internet users who seek out a website via the challenged domain are directed to a site that does not display any information. Such nonuse does not constitute a bona fide offering of goods or services pursuant to Policy ¶ 4(c)(i) or a legitimate noncommercial or fair use pursuant to Policy ¶ 4(c)(iii). See LFP, Inc. v. B & J Props., FA 109697 (Nat. Arb. Forum May 30, 2002) (holding that a respondent cannot simply do nothing and effectively “sit on his rights” for an extended period of time when it might be capable of doing otherwise).
Moreover, Respondent has failed to produce any evidence
suggesting that Respondent is commonly known by the <buschlight.com>
domain name. Thus, Respondent has not
established rights or legitimate interests in the <buschlight.com> domain
name pursuant to Policy ¶ 4(c)(ii). See
RMO, Inc. v. Burbridge, FA 96949
(Nat. Arb. Forum May 16, 2001) (interpreting Policy ¶ 4(c)(ii) "to require
a showing that one has been commonly known by the domain name prior to
registration of the domain name to prevail").
The Panel thus finds that Complainant satisfied Policy ¶ 4(a)(ii).
Complainant alleges, and Respondent does not deny, that Respondent has acted in bad faith. Respondent has not posted any content at the website associated with the <buschlight.com> domain name. Respondent has held the respective registration for over three years. With no content associated at the website and no evidence of Respondent’s demonstrable preparations to use the disputed domain name, it is evident that Respondent registered and used the <buschlight.com> domain name in bad faith, pursuant to 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 a respondent made no use of a domain name and there were no other indications that that respondent could have registered and used the domain name in question for any non-infringing purpose).
We are mindful that Policy ¶ 4(a)(iii) requires that, in order for Complainant to prevail in this proceeding, it must demonstrate that Respondent’s domain “is being used in bad faith”. However, that Respondent has apparently never actively used the subject domain name does not defeat this element of Complainant’s cause. 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 Caravan Club v. Mrgsale, FA 95314 (Nat. Arb. Forum Aug. 30, 2000), finding that a respondent made no use of a domain name or website that connects with a domain name, and that passive holding of a domain name permits an inference of registration and use in bad faith); and Alitalia –Linee Aeree Italiane S.p.A v. Colour Digital, D2000-1260 (WIPO Nov. 23, 2000).
To this may be added the fact that it appears from the record
that Respondent registered the contested domain name with either actual or
constructive knowledge of Complainant’s rights in the BUSCH LIGHT mark by
virtue of Complainant’s prior registration of the mark with the pertinent
national authorities. Registration of a
confusingly similar domain name despite such actual or constructive knowledge,
without more, evidences bad faith registration within the meaning of Policy ¶
4(a)(iii). See Exxon Mobil Corp. v. Fisher, D2000-1412 (WIPO Dec. 18, 2000); see also Digi Int’l v. DDI Sys., FA
124506 (Nat. Arb. Forum Oct. 24, 2002), and
Orange Glo Int’l v. Blume, FA 118313 (Nat. Arb. Forum Oct. 4,
2002).
For these reasons, the Panel finds that Complainant has satisfied Policy ¶ 4(a)(iii).
Complainant having established all three elements required to be proven under the ICANN Policy, the Panel concludes that the relief requested must be GRANTED.
Accordingly, it is hereby Ordered that the <buschlight.com> domain name be TRANSFERRED forthwith from Respondent to Complainant.
Terry F. Peppard, Panelist
Dated: September 29, 2006
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